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Newsletter
Volume 143
October 1, 2015
Welcome Southern States Cooperative!
It's always great news when you learn a new client is coming onboard. Southern States Cooperative, one of the most respected cooperatives in agriculture, has decided to become a client. Farmer-owned since 1923, the organization has consistently provided expert products, services and advice to people who aren't afraid of getting their hands dirty. We understand that thought process and look forward to working with the Southern States locations as they settle into the retainer program over the next few months.
Remembering Lester Pitchford
We were very sorry to learn of the passing of Lester Pitchford, 95, of Richview, Illinois. He started Pitchford Elevator in Richview, IL in 1965 and was a founding director of Richview State Bank. We honor Mr. Pitchford as a true advocate for independent, family-owned businesses, and as an integral part of the success of the agribusiness industry in Southern Illinois. Our thoughts and prayers go out to his family and team at Pitchford Elevator.
Heads Up: Sulfur Dust Explosions
We've recently learned there have been several dust explosions involving sulfur. The Fertilizer Institute recently prepared and circulated a memo outlining the concerns/dangers of sulfur handling and sulfur dust explosions. The memo has been widely circulated through the State Plant Control Officials, State Associations and other affiliates. If you are handling bulk sulfur, please note this issue is trending and take the proper steps to prevent an explosion at your facility. More information is provided later in this newsletter.
New ERG Coming in 2016
The familiar little orange guidebook, originally developed for emergency responders, has become a basic staple of compliance for anyone transporting hazardous materials. Our partners at J.J. Keller & Associates notified us recently the guidebooks will be updated and published with a 2016 date. We pre-ordered a truck load to get the very best pricing and will take orders during the annual compliance visit. We are happy to announce the prices will remain the same as they were back in 2012: $1.25
PSM Rollout On Track
Our rollout of the tools and services to help comply with the new Process Safety Management (PSM) standard is well underway. The recent loss of the retail exemption will cause the typical retail facility to develop a PSM program and upgrade their RMP to a program level 3. With the Process & Instrumentation Diagrams (P&ID) almost finished, we will be launching the new MyPSM+RMP Suite of Guidance Materials on October 15th. The next step to compliance is attending one of the MyPSM+RMP Workshops: A to Z. Watch your mail for an invitation to attend one of these workshops.
PSM: Special Report Available for Ag Retailers
Process Safety Management (PSM) has been a popular topic since OSHA's announcement on July 22nd rescinding the retail exemption. Work is currently underway to build the tools necessary to help retailers comply with PSM and upgrade their Risk Management Programs from Level 2 to Level 3. The tools are set to launch by October 15th. In the meantime, if you haven't read Process Safety Management (PSM) for Ag Retailers we recommend you do so today.
Industry Pushes Back on OSHA: PSM
Several industries affected by OSHA's July 22nd memo rescinding the retail exemption were joined by the Agricultural Retailers Association (ARA) and The Fertilizer Institute (TFI) in petitioning the court system. The action is designed to see if a Judge would agree that OSHA erred when the agency decided to rescind the retail exemption by guidance as opposed to formal rulemaking. Anhydrous ammonia was present onsite at West Fertilizer, but did not contribute to the explosion. OSHA has stated the retail exemption "prevented" them from inspecting retail facilities, including West Fertilizer. It's a pretty thin argument that doesn't merit their actions. While we hope this process provides for more time, we highly recommend our clients proceed with developing their PSM and RMP-3 programs in case the court doesn't agree. OSHA originally provided the exemption through interpretation and guidance in 2001.
TFI & ARA Urge OSHA to Extend PSM Deadline for Retailers
The Fertilizer Institute (TFI) joined the Agricultural Retailers Association (ARA) in sending a letter to OSHA requesting an extension to the PSM compliance period for agricultural retailers. When announcing the new PSM policy, OSHA gave agricultural retailers six months to comply with the revised rule. This is far too little time for retailers to understand the PSM requirements, complete any upgrades and develop their PSM compliance materials. The letter highlighted the compliance challenges facing retailers, the cost of compliance and requests that OSHA provide an extension to the compliance period. We are contributing to this topic on several fronts. The most important issue is helping to ensure retailers have ample time and resources to understand the requirements and develop their programs.
Senator Ernst Gets Tough on OSHA
U.S. Senator Joni Ernst (R-IA) lambasted OSHA and the Obama administration last week for circumnavigating the federal rule-making process. "...this administration seems to be making a habit of circumventing the American people and their right to comment before they make these changes," Ernst said during a Homeland Security and Governmental Affairs subcommittee hearing on OSHA's recent guidance issuance to the anhydrous ammonia industry. Click here to watch the video of Senator Ernst.
EPA Changes the Worker Protection Standard
EPA has revised the 1992 Agricultural Worker Protection Standard (WPS) regulation. The regulation seeks to protect and reduce the risks of injury or illness resulting from agricultural workers' and pesticide handlers' use and contact with pesticides. Major changes to the regulation include:
  • Annual training to inform farm workers on the required protections. Currently, training is only once every 5 years.
  • Expanded training includes instructions to reduce take-home exposure from pesticides on work clothing and other safety topics.
  • Children under 18 are prohibited from handling pesticides.
  • Expanded mandatory posting of no-entry signs for the most hazardous pesticides. The signs prohibit entry into pesticide-treated fields until residues decline to a safe level.
  • New no-entry application exclusion zones up to 100 feet surrounding pesticide application equipment.
  • Requirement to provide more than one way for farm workers and their representatives to gain access to pesticide application information and safety data sheets - centrally-posted or by requesting records.
  • Mandatory record-keeping to improve the state's ability to follow up on pesticide violations and enforce compliance. Records of application-specific pesticide information, as well as farm worker training, must be kept for two years.
  • Changes in personal protective equipment will be consistent with OSHA standards for ensuring respirators are effective, including fit test, medical evaluation and training.
  • Specific amounts of water to be used for routine washing, emergency eye flushing and other decontamination, including eye wash systems for handlers at pesticide mixing/loading sites.
These revisions are expected to be published in the Federal Register within the next 60 days. The majority of the revisions will be effective approximately 14 months after the rule appears in the Federal Register. For more information click here.
FDA Publishes Final FSMA Feed, Pet Food Rule
FDA recently published the long-awaited final feed rule under the Food Safety Modernization Act (FSMA), with the most sweeping changes in how animal foods are regulated in 70 years. Entitled "Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Food for Animals," publication sets off a staggered compliance date schedule, with compliance dates set one, two, three or four years off from the date of publication, depending on the size of the firm. Full details of the rule can be found at www.fda.gov, and following prompts to the special section on FSMA.
FSMA was signed into law on January 4, 2011 and provides FDA with sweeping new authorities designed to prevent food safety episodes. FSMA authorizes FDA to promulgate new rules for preventive controls, develop performance standards, create new administrative detention rules, provides authority for mandatory recall of adulterated products and provides authority for hiring more than 4,000 new field staff among other provisions.
FDA has set the following compliance dates for the rule:
Business Size
CGMP Compliance Date
Preventative Controls Compliance Date
Large businesses other than small and very small businesses.
1 year - Sept. 17, 2016
2 years - Sept. 17, 2017
Small business - Employing fewer than 500 full-time employees.
2 years - Sept. 17, 2017
3 years - Sept. 17, 2018
Small business - very small
3 years - Sept. 17, 2018*
4 years - Sept. 17, 2019**
*A business averaging less than $2.5 million per year, during the three-year period preceding the applicable calendar year in sales of animal food plus the market value of animal food manufactured, processed, packed or held without sale. **Except for records to support its status as a very small business, which a company must start maintaining on Jan. 1, 2017.
DOT Posts Guidance for Drivers Applying for Hearing Exemption
DOT has posted new guidance documents to help commercial drivers apply for an exemption from the hearing standard. The guidance includes a list of the information that must be sent to the agency to get an exemption from the federal hearing standard in 49 CFR Sec. 391.41(b)(11).
The DOT's hearing standard prohibits drivers who cannot pass the hearing requirement from operating commercial motor vehicles in interstate commerce. Drivers must be able to hear a whispered voice at five feet or have an average hearing loss of no more than 40 decibels in their better ear. DOT first started granting exemptions from the hearing standard in early 2013 and has since approved numerous applications.
To apply for an exemption from the hearing standard, DOT says drivers should submit a list of six items, including a copy of the driver's license, a "Release of Medical Information" form and a three-year driving record from the state. The agency is authorized to grant exemptions for up to two years if it determines that public safety will not be harmed. The agency must first evaluate each driver's application, publish it and take public comments, and then decide whether to grant or deny the request. The new guidance documents and release form can be viewed by clicking here. Also on the DOT's website are documents to apply for exemptions from the diabetes and vision standards.
Know the Details Before Requesting DOT Post-Accident Tests
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 26 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
It's a common question: Do the circumstances warrant DOT post-accident tests? Suppose your CDL driver calls in saying there's been an accident. Everyone's adrenaline is running, and you may have to pry the details out of him or her to determine if DOT post-accident drug and alcohol testing is required. The following checklist will aid in deciding your course of action:
  1. Did the accident occur in a vehicle that requires a CDL?
    • If yes, proceed to question 2.
    • If no, you cannot test under §382.303, regardless of the licensing of the driver. The driver is not subject to Part 382 in this instance. Stop here.
  2. Was there a fatality as a result of the accident within 8 hours of the accident?
    • If yes, send the driver for both a drug and alcohol test. Stop here.
    • If no, proceed to question 3.
  3. Was there a fatality as a result of the accident occurring beyond 8 hours following the accident, but within 32 hours?
    • If yes, send the driver for just drug testing, and document that alcohol testing could not be performed because it was past the allowable time frame for testing. Stop here.
    • If no, proceed to question 4. You cannot test if the fatality occurs beyond 32 hours after the accident. Testing would be based on other variables if they exist.
  4. Was there an injury as a result of the accident that required treatment away from the scene?
    • If yes, proceed to question 6.
    • If no, continue with question 5.
  5. Was there disabling damage to one of the vehicles involved in the accident that required towing?
    • If yes, proceed to question 6.
    • If no, stop here (i.e., no damage, no injury, no fatality). It does not qualify for testing.
  6. Was your driver cited, plus does one of the situations listed in questions 4 and/or 5 exist?
    • If yes, proceed to question 7.
    • If no, the incident does not qualify for DOT testing.
  7. Was the driver cited at the scene or within 8 hours of the accident, plus does one of the situations in questions 4 and/or 5 exist?
    • If yes, send the driver for both a drug and alcohol test.
    • If no, proceed to question 8.
  8. Was your driver cited later than 8 hours, but within 32 hours of the accident, plus does one of the situations in questions 4 and/or 5 exist?
    • If yes, just test the driver for drugs, and document that alcohol testing could not be performed since it was past the allowable time frame for testing.
    • If no, proceed to question 9.
  9. Was the driver cited beyond 32 hours of the accident, plus does one of the situations in questions 4 and/or 5 exist?
    • If yes, you cannot conduct either test type. Document that it was beyond allowable time frame for testing. Stop here.
As you can see from this checklist, all the variables must be met in order to test under DOT rules. You cannot test "just in case" circumstances change. This is a misrepresentation of the test and a violation.
If you conduct testing in "all post-accident circumstances" as a matter of company policy, it must be done using a non-DOT form and represented as a non-DOT test to the driver. The collector must also be aware that it is not a regulated test. The drug test results must be linked to a separate non-DOT lab account for reporting purposes. The results of these non-DOT tests hold no DOT consequences. In addition, if circumstances change and a DOT post-accident test is required, these non-DOT tests cannot be substituted to satisfy the DOT requirements. The driver must be sent again for another round of tests.
EPA Water Rule Still Clear As Mud
The new federal Clean Water Rule went into effect August 28th. As elsewhere across the nation, Washington, Oregon and California agricultural groups are still uncertain about whether the law will put farmers, ranchers and irrigation projects under more federal control and/or litigation rush. The uncertainty about the rule extends to whether it's actually in effect. North Dakota U.S. District Court Judge Ralph Erickson granted an injunction sought by 13 states, including Idaho, to delay the rule's implementation. North Dakota's attorney general, Wayne Stenehjem, said he believes the injunction applied to all 50 states. The EPA asserts the injunction only applies to the 13 states and that the new rule went into effect in the other 37 states as scheduled, 60 days after it was published. Altogether, attorney generals in 28 states have sought to delay implementation.
Resolution to Impeach EPA Head To Be Introduced in Congress
Arizona Representative Paul Gosar is leading the way to introduce a resolution of impeachment for EPA Administrator Gina McCarthy. The resolution accuses McCarthy of lying under oath to Congress, perjury and high crimes and misdemeanors. "Impeaching Regina McCarthy, Administrator of the United States Environmental Protection Agency, for high crimes and misdemeanors," the resolution states.
California EPA Labels Glyphosate as a Carcinogen
The California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) announced on September 4th that it intends to add glyphosate, the active ingredient in Monsanto's widely used RoundUp herbicide, to the list of cancer-causing chemicals under the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).
The OEHHA's "notice of intent" marks the first time that a regulatory agency in the U.S. has labeled glyphosate as a carcinogen and follows the March 2015 declaration by the World Health Organization's International Agency for Research on Cancer (IARC) that glyphosate is "probably carcinogenic to humans." OEHHA is accepting comments on its proposal until 5:00 p.m. on Oct. 5. If glyphosate remains on the list, California and other states could impose significant limits on its sale and uses. The USGS National Water Quality Assessment Program estimates that approximately 280 million pounds of glyphosate was used in the U.S. in 2012.
Monsanto issued a statement saying it "strongly disagrees" with the OEHHA decision, and that the IARC ruling in March "overlooked decades of thorough and science-based analysis" of the health and environmental risks posed by glyphosate. "No regulatory agency in the world considers glyphosate to be a carcinogen," Monsanto said. "Indeed, regulatory agencies have reviewed all the key studies examined by IARC - and many more - and arrived at the overwhelming consensus that glyphosate poses no unreasonable risks to humans or the environment when used according to label instructions."
In addition to glyphosate, the September 4th announcement from OEHHA also proposes to add parathion, malathion and tetrachlorvinphos to the Proposition 65 list.
More on Sulfur Dust Explosions
Sulfur dust is highly combustible and has a lower flash point than many other combustible dusts. The Fertilizer Institute recently prepared and circulated a memo outlining the concerns/dangers of sulfur handling and sulfur dust explosions. The memo advised fertilizer retailers of the dangers of sulfur dust and the potential for sulfur dust explosions.
Sulfur is an important plant nutrient. Since the passage of the Clean Air Act, the amount of atmospheric deposition of sulfur has dropped across the United States. To compensate for the reduced atmospheric deposition, farmers and their agricultural retailers are increasingly adding sulfur containing fertilizers to their crops.
The National Fire Protection Association Standard 655 (NFPA 655), Standard for Prevention of Sulfur Fires and Explosions (2012), addresses prevention of sulfur fires and explosions. As noted in the standard, sulfur dust has a low ignition point of 190ºC and the dust clouds are readily ignited by weak frictional sparks. Dusts containing 25% or more of elemental sulfur may be almost explosive as pure sulfur. Sulfur has excellent electrical insulation properties and can pick up static electricity, which, when discharged, can cause a spark that will ignite the dust cloud. Due to the potential dangers from handling sulfur, it is advisable to review your safety and housekeeping procedures to ensure that equipment and facilities are maintained to minimize the risk of sulfur dust explosions. The NFPA 655 Standard is available for free online. If you have any questions, please do not hesitate to contact either Wade Foster with The Fertilizer Institute via email at wfoster@tfi.org, or Kyle Liske with the Agricultural Retailers Association via email at kyle@aradc.com.
2015 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.
Welcome Southern States Cooperative!
It's always great news when you learn a new client is coming onboard. Southern States Cooperative, one of the most respected cooperatives in agriculture, has decided to become a client. Farmer-owned since 1923, the organization has consistently provided expert products, services and advice to people who aren't afraid of getting their hands dirty. We understand that thought process and look forward to working with the Southern States locations as they settle into the retainer program over the next few months.
Remembering Lester Pitchford
We were very sorry to learn of the passing of Lester Pitchford, 95, of Richview, Illinois. He started Pitchford Elevator in Richview, IL in 1965 and was a founding director of Richview State Bank. We honor Mr. Pitchford as a true advocate for independent, family-owned businesses, and as an integral part of the success of the agribusiness industry in Southern Illinois. Our thoughts and prayers go out to his family and team at Pitchford Elevator.
Heads Up: Sulfur Dust Explosions
We've recently learned there have been several dust explosions involving sulfur. The Fertilizer Institute recently prepared and circulated a memo outlining the concerns/dangers of sulfur handling and sulfur dust explosions. The memo has been widely circulated through the State Plant Control Officials, State Associations and other affiliates. If you are handling bulk sulfur, please note this issue is trending and take the proper steps to prevent an explosion at your facility. More information is provided later in this newsletter.
New ERG Coming in 2016
The familiar little orange guidebook, originally developed for emergency responders, has become a basic staple of compliance for anyone transporting hazardous materials. Our partners at J.J. Keller & Associates notified us recently the guidebooks will be updated and published with a 2016 date. We pre-ordered a truck load to get the very best pricing and will take orders during the annual compliance visit. We are happy to announce the prices will remain the same as they were back in 2012: $1.25
PSM Rollout On Track
Our rollout of the tools and services to help comply with the new Process Safety Management (PSM) standard is well underway. The recent loss of the retail exemption will cause the typical retail facility to develop a PSM program and upgrade their RMP to a program level 3. With the Process & Instrumentation Diagrams (P&ID) almost finished, we will be launching the new MyPSM+RMP Suite of Guidance Materials on October 15th. The next step to compliance is attending one of the MyPSM+RMP Workshops: A to Z. Watch your mail for an invitation to attend one of these workshops.
PSM: Special Report Available for Ag Retailers
Process Safety Management (PSM) has been a popular topic since OSHA's announcement on July 22nd rescinding the retail exemption. Work is currently underway to build the tools necessary to help retailers comply with PSM and upgrade their Risk Management Programs from Level 2 to Level 3. The tools are set to launch by October 15th. In the meantime, if you haven't read Process Safety Management (PSM) for Ag Retailers we recommend you do so today.
Industry Pushes Back on OSHA: PSM
Several industries affected by OSHA's July 22nd memo rescinding the retail exemption were joined by the Agricultural Retailers Association (ARA) and The Fertilizer Institute (TFI) in petitioning the court system. The action is designed to see if a Judge would agree that OSHA erred when the agency decided to rescind the retail exemption by guidance as opposed to formal rulemaking. Anhydrous ammonia was present onsite at West Fertilizer, but did not contribute to the explosion. OSHA has stated the retail exemption "prevented" them from inspecting retail facilities, including West Fertilizer. It's a pretty thin argument that doesn't merit their actions. While we hope this process provides for more time, we highly recommend our clients proceed with developing their PSM and RMP-3 programs in case the court doesn't agree. OSHA originally provided the exemption through interpretation and guidance in 2001.
TFI & ARA Urge OSHA to Extend PSM Deadline for Retailers
The Fertilizer Institute (TFI) joined the Agricultural Retailers Association (ARA) in sending a letter to OSHA requesting an extension to the PSM compliance period for agricultural retailers. When announcing the new PSM policy, OSHA gave agricultural retailers six months to comply with the revised rule. This is far too little time for retailers to understand the PSM requirements, complete any upgrades and develop their PSM compliance materials. The letter highlighted the compliance challenges facing retailers, the cost of compliance and requests that OSHA provide an extension to the compliance period. We are contributing to this topic on several fronts. The most important issue is helping to ensure retailers have ample time and resources to understand the requirements and develop their programs.
Senator Ernst Gets Tough on OSHA
U.S. Senator Joni Ernst (R-IA) lambasted OSHA and the Obama administration last week for circumnavigating the federal rule-making process. "...this administration seems to be making a habit of circumventing the American people and their right to comment before they make these changes," Ernst said during a Homeland Security and Governmental Affairs subcommittee hearing on OSHA's recent guidance issuance to the anhydrous ammonia industry. Click here to watch the video of Senator Ernst.
EPA Changes the Worker Protection Standard
EPA has revised the 1992 Agricultural Worker Protection Standard (WPS) regulation. The regulation seeks to protect and reduce the risks of injury or illness resulting from agricultural workers' and pesticide handlers' use and contact with pesticides. Major changes to the regulation include:
  • Annual training to inform farm workers on the required protections. Currently, training is only once every 5 years.
  • Expanded training includes instructions to reduce take-home exposure from pesticides on work clothing and other safety topics.
  • Children under 18 are prohibited from handling pesticides.
  • Expanded mandatory posting of no-entry signs for the most hazardous pesticides. The signs prohibit entry into pesticide-treated fields until residues decline to a safe level.
  • New no-entry application exclusion zones up to 100 feet surrounding pesticide application equipment.
  • Requirement to provide more than one way for farm workers and their representatives to gain access to pesticide application information and safety data sheets - centrally-posted or by requesting records.
  • Mandatory record-keeping to improve the state's ability to follow up on pesticide violations and enforce compliance. Records of application-specific pesticide information, as well as farm worker training, must be kept for two years.
  • Changes in personal protective equipment will be consistent with OSHA standards for ensuring respirators are effective, including fit test, medical evaluation and training.
  • Specific amounts of water to be used for routine washing, emergency eye flushing and other decontamination, including eye wash systems for handlers at pesticide mixing/loading sites.
These revisions are expected to be published in the Federal Register within the next 60 days. The majority of the revisions will be effective approximately 14 months after the rule appears in the Federal Register. For more information click here.
FDA Publishes Final FSMA Feed, Pet Food Rule
FDA recently published the long-awaited final feed rule under the Food Safety Modernization Act (FSMA), with the most sweeping changes in how animal foods are regulated in 70 years. Entitled "Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Food for Animals," publication sets off a staggered compliance date schedule, with compliance dates set one, two, three or four years off from the date of publication, depending on the size of the firm. Full details of the rule can be found at www.fda.gov, and following prompts to the special section on FSMA.
FSMA was signed into law on January 4, 2011 and provides FDA with sweeping new authorities designed to prevent food safety episodes. FSMA authorizes FDA to promulgate new rules for preventive controls, develop performance standards, create new administrative detention rules, provides authority for mandatory recall of adulterated products and provides authority for hiring more than 4,000 new field staff among other provisions.
FDA has set the following compliance dates for the rule:
Business Size
CGMP Compliance Date
Preventative Controls Compliance Date
Large businesses other than small and very small businesses.
1 year - Sept. 17, 2016
2 years - Sept. 17, 2017
Small business - Employing fewer than 500 full-time employees.
2 years - Sept. 17, 2017
3 years - Sept. 17, 2018
Small business - very small
3 years - Sept. 17, 2018*
4 years - Sept. 17, 2019**
*A business averaging less than $2.5 million per year, during the three-year period preceding the applicable calendar year in sales of animal food plus the market value of animal food manufactured, processed, packed or held without sale. **Except for records to support its status as a very small business, which a company must start maintaining on Jan. 1, 2017.
DOT Posts Guidance for Drivers Applying for Hearing Exemption
DOT has posted new guidance documents to help commercial drivers apply for an exemption from the hearing standard. The guidance includes a list of the information that must be sent to the agency to get an exemption from the federal hearing standard in 49 CFR Sec. 391.41(b)(11).
The DOT's hearing standard prohibits drivers who cannot pass the hearing requirement from operating commercial motor vehicles in interstate commerce. Drivers must be able to hear a whispered voice at five feet or have an average hearing loss of no more than 40 decibels in their better ear. DOT first started granting exemptions from the hearing standard in early 2013 and has since approved numerous applications.
To apply for an exemption from the hearing standard, DOT says drivers should submit a list of six items, including a copy of the driver's license, a "Release of Medical Information" form and a three-year driving record from the state. The agency is authorized to grant exemptions for up to two years if it determines that public safety will not be harmed. The agency must first evaluate each driver's application, publish it and take public comments, and then decide whether to grant or deny the request. The new guidance documents and release form can be viewed by clicking here. Also on the DOT's website are documents to apply for exemptions from the diabetes and vision standards.
Know the Details Before Requesting DOT Post-Accident Tests
This article is made possible by J.J. Keller & Associates, a valued partner of the Asmark Institute for over 26 years. Our thanks to J.J. Keller for their support over the years and for the use of this article.
It's a common question: Do the circumstances warrant DOT post-accident tests? Suppose your CDL driver calls in saying there's been an accident. Everyone's adrenaline is running, and you may have to pry the details out of him or her to determine if DOT post-accident drug and alcohol testing is required. The following checklist will aid in deciding your course of action:
  1. Did the accident occur in a vehicle that requires a CDL?
    • If yes, proceed to question 2.
    • If no, you cannot test under §382.303, regardless of the licensing of the driver. The driver is not subject to Part 382 in this instance. Stop here.
  2. Was there a fatality as a result of the accident within 8 hours of the accident?
    • If yes, send the driver for both a drug and alcohol test. Stop here.
    • If no, proceed to question 3.
  3. Was there a fatality as a result of the accident occurring beyond 8 hours following the accident, but within 32 hours?
    • If yes, send the driver for just drug testing, and document that alcohol testing could not be performed because it was past the allowable time frame for testing. Stop here.
    • If no, proceed to question 4. You cannot test if the fatality occurs beyond 32 hours after the accident. Testing would be based on other variables if they exist.
  4. Was there an injury as a result of the accident that required treatment away from the scene?
    • If yes, proceed to question 6.
    • If no, continue with question 5.
  5. Was there disabling damage to one of the vehicles involved in the accident that required towing?
    • If yes, proceed to question 6.
    • If no, stop here (i.e., no damage, no injury, no fatality). It does not qualify for testing.
  6. Was your driver cited, plus does one of the situations listed in questions 4 and/or 5 exist?
    • If yes, proceed to question 7.
    • If no, the incident does not qualify for DOT testing.
  7. Was the driver cited at the scene or within 8 hours of the accident, plus does one of the situations in questions 4 and/or 5 exist?
    • If yes, send the driver for both a drug and alcohol test.
    • If no, proceed to question 8.
  8. Was your driver cited later than 8 hours, but within 32 hours of the accident, plus does one of the situations in questions 4 and/or 5 exist?
    • If yes, just test the driver for drugs, and document that alcohol testing could not be performed since it was past the allowable time frame for testing.
    • If no, proceed to question 9.
  9. Was the driver cited beyond 32 hours of the accident, plus does one of the situations in questions 4 and/or 5 exist?
    • If yes, you cannot conduct either test type. Document that it was beyond allowable time frame for testing. Stop here.
As you can see from this checklist, all the variables must be met in order to test under DOT rules. You cannot test "just in case" circumstances change. This is a misrepresentation of the test and a violation.
If you conduct testing in "all post-accident circumstances" as a matter of company policy, it must be done using a non-DOT form and represented as a non-DOT test to the driver. The collector must also be aware that it is not a regulated test. The drug test results must be linked to a separate non-DOT lab account for reporting purposes. The results of these non-DOT tests hold no DOT consequences. In addition, if circumstances change and a DOT post-accident test is required, these non-DOT tests cannot be substituted to satisfy the DOT requirements. The driver must be sent again for another round of tests.
EPA Water Rule Still Clear As Mud
The new federal Clean Water Rule went into effect August 28th. As elsewhere across the nation, Washington, Oregon and California agricultural groups are still uncertain about whether the law will put farmers, ranchers and irrigation projects under more federal control and/or litigation rush. The uncertainty about the rule extends to whether it's actually in effect. North Dakota U.S. District Court Judge Ralph Erickson granted an injunction sought by 13 states, including Idaho, to delay the rule's implementation. North Dakota's attorney general, Wayne Stenehjem, said he believes the injunction applied to all 50 states. The EPA asserts the injunction only applies to the 13 states and that the new rule went into effect in the other 37 states as scheduled, 60 days after it was published. Altogether, attorney generals in 28 states have sought to delay implementation.
Resolution to Impeach EPA Head To Be Introduced in Congress
Arizona Representative Paul Gosar is leading the way to introduce a resolution of impeachment for EPA Administrator Gina McCarthy. The resolution accuses McCarthy of lying under oath to Congress, perjury and high crimes and misdemeanors. "Impeaching Regina McCarthy, Administrator of the United States Environmental Protection Agency, for high crimes and misdemeanors," the resolution states.
California EPA Labels Glyphosate as a Carcinogen
The California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) announced on September 4th that it intends to add glyphosate, the active ingredient in Monsanto's widely used RoundUp herbicide, to the list of cancer-causing chemicals under the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).
The OEHHA's "notice of intent" marks the first time that a regulatory agency in the U.S. has labeled glyphosate as a carcinogen and follows the March 2015 declaration by the World Health Organization's International Agency for Research on Cancer (IARC) that glyphosate is "probably carcinogenic to humans." OEHHA is accepting comments on its proposal until 5:00 p.m. on Oct. 5. If glyphosate remains on the list, California and other states could impose significant limits on its sale and uses. The USGS National Water Quality Assessment Program estimates that approximately 280 million pounds of glyphosate was used in the U.S. in 2012.
Monsanto issued a statement saying it "strongly disagrees" with the OEHHA decision, and that the IARC ruling in March "overlooked decades of thorough and science-based analysis" of the health and environmental risks posed by glyphosate. "No regulatory agency in the world considers glyphosate to be a carcinogen," Monsanto said. "Indeed, regulatory agencies have reviewed all the key studies examined by IARC - and many more - and arrived at the overwhelming consensus that glyphosate poses no unreasonable risks to humans or the environment when used according to label instructions."
In addition to glyphosate, the September 4th announcement from OEHHA also proposes to add parathion, malathion and tetrachlorvinphos to the Proposition 65 list.
More on Sulfur Dust Explosions
Sulfur dust is highly combustible and has a lower flash point than many other combustible dusts. The Fertilizer Institute recently prepared and circulated a memo outlining the concerns/dangers of sulfur handling and sulfur dust explosions. The memo advised fertilizer retailers of the dangers of sulfur dust and the potential for sulfur dust explosions.
Sulfur is an important plant nutrient. Since the passage of the Clean Air Act, the amount of atmospheric deposition of sulfur has dropped across the United States. To compensate for the reduced atmospheric deposition, farmers and their agricultural retailers are increasingly adding sulfur containing fertilizers to their crops.
The National Fire Protection Association Standard 655 (NFPA 655), Standard for Prevention of Sulfur Fires and Explosions (2012), addresses prevention of sulfur fires and explosions. As noted in the standard, sulfur dust has a low ignition point of 190ºC and the dust clouds are readily ignited by weak frictional sparks. Dusts containing 25% or more of elemental sulfur may be almost explosive as pure sulfur. Sulfur has excellent electrical insulation properties and can pick up static electricity, which, when discharged, can cause a spark that will ignite the dust cloud. Due to the potential dangers from handling sulfur, it is advisable to review your safety and housekeeping procedures to ensure that equipment and facilities are maintained to minimize the risk of sulfur dust explosions. The NFPA 655 Standard is available for free online. If you have any questions, please do not hesitate to contact either Wade Foster with The Fertilizer Institute via email at wfoster@tfi.org, or Kyle Liske with the Agricultural Retailers Association via email at kyle@aradc.com.
2015 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.