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Newsletter
Volume 145
December 1, 2015
Season's Greetings!
As we enter into the holiday season, all of us at the Asmark Institute would like to wish you and your families a very Merry Christmas and a safe and prosperous New Year. We appreciate the relationship that has been developed between our organizations over the years, and especially the opportunity to have worked with you in 2015!
Welcome to The McGregor Company!
It's always great news when you learn a new client is coming onboard. The McGregor Company, a pioneer in the industry and the largest independent fertilizer, agri-chemical and equipment dealer in the Pacific Northwest, has decided to become a client. More than 100 years ago the McGregor family came to the Palouse country as sheep raisers. In 1901, the McGregors added wheat to their farming enterprise and pioneered experimentation with commercial fertilizers in 1948. This marked the beginning of their commitment to agricultural research and development, which has continued since those pioneering days. Welcome to the McGregor team as they settle into the retainer program over the next few months.
Annual Compliance Visit Reminder: December 31, 2015
As a reminder, please make note of the deadline to have completed your annual compliance visit.
PSM Rollout On Track
Our rollout of the tools and services to help comply with the new Process Safety Management (PSM) standard is complete. The recent loss of the retail exemption will cause retail facilities to develop a PSM program and upgrade their RMP to a program level 3. We have provided a strong start, backed by in-depth workshops, to provide our clients with beneficial information as early in the process as was possible - we recommend you continue on your path to compliance with PSM by completing the following checklist in a timely manner:
  • MyPSM+RMP tools launched.
  • Attend a PSM workshop for training.
  • Proof and return your P&ID diagram to the Asmark Institute.
  • Develop your PSM program, starting with:
    • Mechanical Integrity Manual (Update)
    • Written Operating Procedures (Create)
    • Process Hazard Analysis (Complete)
  • Send us your information to upgrade the RMP to a Program 3 by March 1, 2016. Watch your mail for instructions.
Upon receiving the information to upgrade your RMP to a Program 3, the Asmark Institute will prepare the submission as always, send you a draft to proof and submit your RMP to EPA on July 22, 2016. Dustin Warder is our lead on PSM/RMP and can be contacted at 270-926-4600, Ext 203.
Update: Industry Pushes Back on PSM
The Agricultural Retailers Association (ARA) and The Fertilizer Institute (TFI) petitioned the court system in October on the basis that OSHA erred when the agency decided to rescind the retail exemption by guidance as opposed to formal rulemaking. OSHA has filed a motion to have the case dismissed citing the retail exemption was originally provided by an interpretive letter and the agency feels they were well within their boundaries of rescinding the exemption via the same process of an interpretive letter. The Supreme Court recently ruled in favor of an agency on a similar case.
In an unexpected move, the United Steelworker's Union filed a motion to intervene into the case because "their members might lose existing health and safety protections if employers who are now covered by the PSM standard couple their existing manufacturing processes with retail operations." ARA filed an opposition to this motion on November 16th.
Also on November 16th, ARA and TFI jointly filed a motion to stay enforcement of PSM until the pending litigation is resolved. Should the Court decide to grant the stay, it will be an indicator that industry has a reasonable likelihood to win on the merits of the case based on irreparable harm to the industry, neither party will be harmed by a stay, and a stay if granted, will serve the public interest.
OSHA will file their response to the motion to stay in early December. The Court will then review and rule on all of the outstanding motions (dismiss, intervene and to stay) and announce sometime by mid-January.
EPA Issues Memo on OSHA PSM Retail Exemption
EPA recently issued a memorandum to all Regional Administrators to establish policy on the effect of OSHA's change to the retail exemption under the Process Safety Management (PSM). The memo indicates that impacted agricultural retail facilities will be required to submit RMP updates to the agency by January 22, 2017, six months after OSHA's announced enforcement date of July 22, 2016.
The memo states: "When effective, this change will result in several thousand facilities that had been eligible for the retail exemption under OSHA's previous interpretation becoming subject to the PSM standard. Most of these facilities were already subject to the EPA Risk Management Program regulations 40 CFR Part 68, but due to their exemption from PSM, were generally subject to RMP Program 2 requirements. As a result of OSHA's action, formerly Program 2 facilities are no longer exempt from the PSM standard will become subject to the more stringent Program 3 requirements."
In the event that OSHA rescinds (or is ordered by a court to rescind) its interpretation, this memo is also rescinded. Click here to read the EPA memo.
Note: Based on the information we have at this time we recommend our clients develop their PSM programs with the goal of substantial compliance by July 22, 2016. This includes the upgrade and preparation of the RMP Program 3 submissions. Retailers have become accustomed to a June anniversary date for their RMP. Based on our experience we recommend adopting the July 22, 2016 as the new date in association with the PSM requirements.
P&ID Service Launches Soon
For those retailers that are not clients of the Asmark Institute, help will soon be available to assist in drawing the Piping and Instrumentation Diagram or "P&ID" for short. The availability of providers to draw the P&IDs is very limited for several reasons. The Asmark Institute is offering this special service as a national resource center to assist all retailers in developing their Process Safety Management (PSM) program. A P&ID is a diagram (not a site plan) that visually represents the equipment and piping present in an installation identified as a PSM-regulated process. Graphic symbols are used to denote the appropriate equipment and piping. The P&ID is one of the first elements of your process safety information that should be completed, as it plays an integral part in developing other requirements of PSM such as Mechanical Integrity, Process Hazard Analysis and the Operating Procedures.
How can we help?
The Asmark Institute will soon launch a professional service that creates detailed and accurate:
  • P&ID (Includes a Key and Schedule)
  • Block Flow Diagram
How does it work?
  1. Take pictures of your installation following the instructions carefully.
  2. We draw the draft version of your P&ID and Block Flow Diagram and send you a proof to review and approve.
  3. Proof your diagrams and send us any revisions that are necessary.
  4. We make the revisions as appropriate and send you the final diagrams.
This new service will launch in December and be available via the Compass section of the Asmark Institute website. Go to: www.asmark.org/Compass. For more information, check out the website or contact Nick Clements at nick.clements@asmark.org or by phone at 270-926-4600, Ext 212 or 506.
INFOTRAC: Check it out!
Since the 90's, we have offered our clients the value-added service of INFOTRAC as the optimum choice of 24-Hour Emergency Response Contacts. INFOTRAC has grown into the worldwide leader in emergency response and recently reinforced the value of their system. If you are currently utilizing CHEMTREC to meet requirements set forth by DOT (49 CFR 172.604) when hazardous materials are offered for transport, you are eligible for discounts up to 60%. As a client of the Asmark Institute, we urge you to request a quote to start saving immediately. If you have any questions regarding INFOTRAC services, please contact Brian Mason at 270-926-4600, Ext 230 or Randy Lee with INFOTRAC at 800-535-5053.
OSHA: Significant Penalty Increases Ahead
The Federal budget contained a little-noticed provision titled the Federal Civil Penalties Inflation Adjustment Improvements Act. The Act requires OSHA to increase its monetary penalties for the first time since 1990. For the past 25 years, OSHA has been exempted from a federal law requiring agencies to increase their fines along with inflation. This will change for OSHA's penalties beginning in August 2016. The law first requires an initial penalty "catch-up adjustment." The catch-up adjustment is based on the percentage difference between the Consumer Price Index (CPI) in October 2015 and October 1990. This will likely result in about an 80% increase in the current penalty amounts. After this initial catch-up adjustment, the law requires OSHA to adjust the penalty amount annually for inflation.
Indiana SARA Changes
The Indiana Department of Environmental Management (IDEM) has transferred the Community Right-to-Know program to the Indiana Department of Homeland Security (IDHS), effective immediately. This means Hoosiers will no longer submit their SARA Tier II reports to IDEM through the Regulatory Services Portal (RSP). Instead, you will submit them to IDHS using Tier II Manager. One-stop reporting: Hoosier businesses no longer need to submit three separate reports to the state, LEPC and fire department. Instead, your single submittal through Tier II Manager satisfies all three requirements. Additionally, paying the HC-500 fee associated with the Tier II report is completed as part of the reporting process.
The system should be active and ready later this month, so please visit the IDHS website for additional information as it becomes available: http://in.gov/dhs/3893.htm.
EPA to Extend Comment Period on Pesticide Applicator Certification
EPA has received and considered a number of requests to extend the public comment period on the proposed changes to the certification of pesticide applicators rule. EPA will grant a 30-day extension to the public comment period on the proposed changes to the certification rule. Comments must be submitted no later than December 23, 2015. Comments can be submitted via www.regulations.gov under docket number EPA-HQ-OPP-2011-0183.
Senate Sharply Divided Over WOTUS Rule
Senate Democrats recently blocked a bill aimed at forcing the Obama administration to replace its Clean Water Act rule, but Republicans quickly advanced a disapproval resolution that would simply kill the rule. The measure aimed at replacing the rule needed 60 votes to advance to a full debate, but just four Democrats supported the cloture motion, leaving the bill three votes short, 57-41. The rule would re-define what ditches, wetlands, streams and other features fall under the jurisdiction of the Clean Water Act (CWA) as "waters of the United States" (WOTUS). After the cloture motion failed, Senate Majority Leader Mitch McConnell, who called the WOTUS rule a "cynical and overbearing power grab," brought up the GOP fallback measure, the disapproval resolution sponsored by Joni Ernst, R-Iowa. It only needed a simple majority to proceed, and the Senate voted 55-43 to take it up.
Activist Litigation Threatens Agricultural Productivity
The EPA proposal to revoke food residue tolerances for chlorpyrifos in response to a court-ordered deadline has ignored the thousands of scientific studies that have examined and validated the product's safe use and agricultural importance. Chlorpyrifos is one of the most widely-tested products across the world and is an invaluable tool for growers on a diverse array of crops.
Following an unwarranted lawsuit petition seeking these revocations, the U.S. 9th Circuit Court denied a request from EPA to extend its deadline to make a revocation decision to April 15, 2016. The court instead forced the Agency to respond by October 31, 2015, before EPA had an opportunity to complete its drinking water risk assessment. It is unfortunate that court-mandated deadlines helped result in the Agency's proposal to revoke food residue tolerances for a beneficial and wide-reaching crop protection product. Unnecessary litigation-driven deadlines risk arbitrarily taking away valuable tools from all farmers, and this is just such a scenario. This is a drastic and unnecessary step that is caused by wasteful, agenda-driven litigation. CropLife America (CLA) is confident that due legal and scientific process will make this proposed action unnecessary. CLA will submit comments on EPA's proposal.
Employers: Ready for the "Drone Zone"
The recent proliferation of drones means that employers should plan for the likelihood that they will enter your worksites in the near future, despite tighter government regulation. Employers should develop policies to ensure safety, protection of company trade secrets and address employee privacy concerns. The policy should specifically take control of your own airspace and establish regulation of the "airspace" within your buildings and above your facilities, parking lots and green spaces. You should begin by crafting a policy that identifies and establishes "no drone zones" within and outside of the facility. Your procedure should specifically address how managers and employees should react if they witness policy violations. Your managers should be trained on whether to contact designated company representatives, law enforcement personnel, and/or the FAA if drones are spotted in or above your workplace. Getting in front of these issues before they land on your desk - figuratively or literally - will help prepare you for the 21st century workplace.
New ERG Coming in 2016
The familiar little orange guidebooks, 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
Everyone Loves a Safety Incentive Program - Except OSHA
Over time, several OSHA officials have made their thoughts on safety incentives rather clear, and in fact have gone into great detail. Here is a short summary of those various comments. "We disapprove of safety incentive programs that, for example, offer a pizza party or allow workers to enter a raffle for a new truck. These incentive programs can discourage employees from reporting injuries because they want to receive the reward." "If you have a culture of safety in your workplace, you don't need incentive programs." "We certainly are not opposed to all incentive plans, though. On the contrary, a positive incentive program that encourages or rewards workers for serving on safety and health committees, completing safety and health training, or reporting injuries, illnesses, near-misses or hazards, can encourage worker involvement in safety and health management systems. An incentive program that encourages positive employee involvement is a valuable component of a Voluntary Protection Program quality safety and health management system."
DOT Declares Georgia Driver an Imminent Hazard to Public Safety
DOT has declared a Georgia truck driver to be an imminent hazard to public safety and has ordered him not to operate any commercial motor vehicle in interstate commerce. The driver falsified his medical history on a job application. A DOT investigation revealed that the driver is medically unqualified to operate a commercial motor vehicle in interstate commerce and that he had falsified the medical history section of a recent truck driving job application to conceal a disqualifying medical diagnosis.
On July 6, 2015, while driving a commercial vehicle on Georgia State Route 11, the driver suffered a medical problem, resulting in his truck crossing both lanes of traffic and crashing through a fence before colliding into a parked vehicle. Following the crash, the driver was sent by his employer to a physician who declared him to be medically unqualified; he was subsequently terminated from his employment as a truck driver.
On July 7, 2015, the driver, in a truck driving job application submitted to a different employer, falsified the medical history section to conceal the medical disqualification issued the previous day, which referenced a 2011 disqualifying medical diagnosis. The driver was subsequently hired on the basis of his fraudulent job application and drove trucks for his new employer through September 17, 2015, when his employer became aware of his July 6, 2015 crash and disqualifying medical condition.
Violating an imminent hazard out-of-service order by a CDL holder may result in civil penalties of up to $2,500 and disqualification from operating a commercial vehicle for not less than 180 days for a first offense. A second offense may result in civil penalties of up to $5,000 and disqualification from operating a commercial vehicle for not less than two years. Failure to comply with the provisions of the imminent hazard out-of-service order may also result in criminal charges brought by the U.S. Attorney's Office.
Sleep Apnea Testing Added to DOT's Regulatory Agenda
DOT is taking steps to determine if new rules concerning sleep apnea are needed. The agency is teaming with the Federal Railroad Administration (FRA) on the fact-gathering process, and any new rules that develop could apply to both highway and railroad workers.
According to the agenda, DOT and FRA request data and information concerning the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among individuals occupying safety sensitive positions in rail and highway transportation. The agencies also request information about the potential economic impact and safety benefits associated with regulatory actions that would result in transportation workers in these positions, who exhibit multiple risk factors for OSA, undergoing evaluation by a healthcare professional with expertise in sleep disorders, and subsequent treatment.
Under DOT medical standards for commercial drivers, untreated sleep apnea is considered a respiratory dysfunction that can prevent a driver from being medically certified. In a January 2015 memo, the agency recommended that drivers diagnosed with sleep apnea be referred to a specialist if the medical examiner believes the driver's condition "is in any way likely to interfere with the driver's ability to safely control and drive a commercial motor vehicle." The expected publication date for the Advanced Notice of Proposed Rulemaking (ANPRM) is December 11, 2015.
Federal Wage and Labor Law Poster Updates
MASSACHUSETTS
Unemployment Insurance (Effective date 10/2015) - Massachusetts has revised their UI notice. Along with some formatting changes and the deletion of information regarding the use of a Social Security number for filing claims online, they have added the specification that claimants for UI must be in the United States, its territories, or Canada to claim or certify for UI benefits. This is a substantive change and an updated Massachusetts poster is required. Click here to order.
NEW JERSEY - CITIES
Paid Sick Leave - New Jersey has had a number of cities pass Paid Sick Leave ordinances this year but notices were not released until much later. Included are:
Bloomfield, Effective 07/2015
East Orange, Effective 01/2015
Montclair, Effective 03/2015
Passaic, Effective 01/2015
Paterson, Effective 01/2015
Trenton, Effective 03/2015
This is a substantive change and a new Specialty poster is required of businesses in the respective cities. Click here to order.
WASHINGTON
Job Safety and Health (Effective date 09/2015) - Washington has significantly revised the Safety and Health notice. Many of the changes are cosmetic, but included is the requirement that all injuries that result in amputation or loss of an eye be reported within 24 hours. It is required per the Department of Labor and Industries. This is a substantive change and an updated Washington poster is required. Click here to order.
MICHIGAN
MIOSHA (Effective date 07/2015) - Michigan has released a new version of their Safety and Health notice. Included among the changes are additional requirements that employers report any work-related fatalities to the Department of Licensing and Regulatory Affairs within 8 hours and any inpatient hospitalizations, amputations, and losses of eyes within 24 hours. Non-substantive changes were also made to the phone numbers listed on the MIOSHA, SDS Location and Right-to-Know notices. The notice was released in September 2015 but backdated to July. This is a substantive change and an updated Michigan poster is required. Click here to order.
NORTH DAKOTA
Minimum Wage (Effective date 08/2015) - North Dakota has updated their minimum wage notice, though not the wage itself. Among numerous minor changes was the additional limitation on paid time off compensation. In North Dakota, if an employee separates from the employer, they do not forfeit any accrued paid time off and must be compensated for it with a few exceptions. In addition to the previous exceptions, it is now allowed for employers to withhold payment for paid time off if it was awarded before being earned or if the employer provided written notice of the limitation on payment of awarded paid time off before it was awarded. This is a substantive change and an updated North Dakota poster is required. Click here to order.
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.
Season's Greetings!
As we enter into the holiday season, all of us at the Asmark Institute would like to wish you and your families a very Merry Christmas and a safe and prosperous New Year. We appreciate the relationship that has been developed between our organizations over the years, and especially the opportunity to have worked with you in 2015!
Welcome to The McGregor Company!
It's always great news when you learn a new client is coming onboard. The McGregor Company, a pioneer in the industry and the largest independent fertilizer, agri-chemical and equipment dealer in the Pacific Northwest, has decided to become a client. More than 100 years ago the McGregor family came to the Palouse country as sheep raisers. In 1901, the McGregors added wheat to their farming enterprise and pioneered experimentation with commercial fertilizers in 1948. This marked the beginning of their commitment to agricultural research and development, which has continued since those pioneering days. Welcome to the McGregor team as they settle into the retainer program over the next few months.
Annual Compliance Visit Reminder: December 31, 2015
As a reminder, please make note of the deadline to have completed your annual compliance visit.
PSM Rollout On Track
Our rollout of the tools and services to help comply with the new Process Safety Management (PSM) standard is complete. The recent loss of the retail exemption will cause retail facilities to develop a PSM program and upgrade their RMP to a program level 3. We have provided a strong start, backed by in-depth workshops, to provide our clients with beneficial information as early in the process as was possible - we recommend you continue on your path to compliance with PSM by completing the following checklist in a timely manner:
  • MyPSM+RMP tools launched.
  • Attend a PSM workshop for training.
  • Proof and return your P&ID diagram to the Asmark Institute.
  • Develop your PSM program, starting with:
    • Mechanical Integrity Manual (Update)
    • Written Operating Procedures (Create)
    • Process Hazard Analysis (Complete)
  • Send us your information to upgrade the RMP to a Program 3 by March 1, 2016. Watch your mail for instructions.
Upon receiving the information to upgrade your RMP to a Program 3, the Asmark Institute will prepare the submission as always, send you a draft to proof and submit your RMP to EPA on July 22, 2016. Dustin Warder is our lead on PSM/RMP and can be contacted at 270-926-4600, Ext 203.
Update: Industry Pushes Back on PSM
The Agricultural Retailers Association (ARA) and The Fertilizer Institute (TFI) petitioned the court system in October on the basis that OSHA erred when the agency decided to rescind the retail exemption by guidance as opposed to formal rulemaking. OSHA has filed a motion to have the case dismissed citing the retail exemption was originally provided by an interpretive letter and the agency feels they were well within their boundaries of rescinding the exemption via the same process of an interpretive letter. The Supreme Court recently ruled in favor of an agency on a similar case.
In an unexpected move, the United Steelworker's Union filed a motion to intervene into the case because "their members might lose existing health and safety protections if employers who are now covered by the PSM standard couple their existing manufacturing processes with retail operations." ARA filed an opposition to this motion on November 16th.
Also on November 16th, ARA and TFI jointly filed a motion to stay enforcement of PSM until the pending litigation is resolved. Should the Court decide to grant the stay, it will be an indicator that industry has a reasonable likelihood to win on the merits of the case based on irreparable harm to the industry, neither party will be harmed by a stay, and a stay if granted, will serve the public interest.
OSHA will file their response to the motion to stay in early December. The Court will then review and rule on all of the outstanding motions (dismiss, intervene and to stay) and announce sometime by mid-January.
EPA Issues Memo on OSHA PSM Retail Exemption
EPA recently issued a memorandum to all Regional Administrators to establish policy on the effect of OSHA's change to the retail exemption under the Process Safety Management (PSM). The memo indicates that impacted agricultural retail facilities will be required to submit RMP updates to the agency by January 22, 2017, six months after OSHA's announced enforcement date of July 22, 2016.
The memo states: "When effective, this change will result in several thousand facilities that had been eligible for the retail exemption under OSHA's previous interpretation becoming subject to the PSM standard. Most of these facilities were already subject to the EPA Risk Management Program regulations 40 CFR Part 68, but due to their exemption from PSM, were generally subject to RMP Program 2 requirements. As a result of OSHA's action, formerly Program 2 facilities are no longer exempt from the PSM standard will become subject to the more stringent Program 3 requirements."
In the event that OSHA rescinds (or is ordered by a court to rescind) its interpretation, this memo is also rescinded. Click here to read the EPA memo.
Note: Based on the information we have at this time we recommend our clients develop their PSM programs with the goal of substantial compliance by July 22, 2016. This includes the upgrade and preparation of the RMP Program 3 submissions. Retailers have become accustomed to a June anniversary date for their RMP. Based on our experience we recommend adopting the July 22, 2016 as the new date in association with the PSM requirements.
P&ID Service Launches Soon
For those retailers that are not clients of the Asmark Institute, help will soon be available to assist in drawing the Piping and Instrumentation Diagram or "P&ID" for short. The availability of providers to draw the P&IDs is very limited for several reasons. The Asmark Institute is offering this special service as a national resource center to assist all retailers in developing their Process Safety Management (PSM) program. A P&ID is a diagram (not a site plan) that visually represents the equipment and piping present in an installation identified as a PSM-regulated process. Graphic symbols are used to denote the appropriate equipment and piping. The P&ID is one of the first elements of your process safety information that should be completed, as it plays an integral part in developing other requirements of PSM such as Mechanical Integrity, Process Hazard Analysis and the Operating Procedures.
How can we help?
The Asmark Institute will soon launch a professional service that creates detailed and accurate:
  • P&ID (Includes a Key and Schedule)
  • Block Flow Diagram
How does it work?
  1. Take pictures of your installation following the instructions carefully.
  2. We draw the draft version of your P&ID and Block Flow Diagram and send you a proof to review and approve.
  3. Proof your diagrams and send us any revisions that are necessary.
  4. We make the revisions as appropriate and send you the final diagrams.
This new service will launch in December and be available via the Compass section of the Asmark Institute website. Go to: www.asmark.org/Compass. For more information, check out the website or contact Nick Clements at nick.clements@asmark.org or by phone at 270-926-4600, Ext 212 or 506.
INFOTRAC: Check it out!
Since the 90's, we have offered our clients the value-added service of INFOTRAC as the optimum choice of 24-Hour Emergency Response Contacts. INFOTRAC has grown into the worldwide leader in emergency response and recently reinforced the value of their system. If you are currently utilizing CHEMTREC to meet requirements set forth by DOT (49 CFR 172.604) when hazardous materials are offered for transport, you are eligible for discounts up to 60%. As a client of the Asmark Institute, we urge you to request a quote to start saving immediately. If you have any questions regarding INFOTRAC services, please contact Brian Mason at 270-926-4600, Ext 230 or Randy Lee with INFOTRAC at 800-535-5053.
OSHA: Significant Penalty Increases Ahead
The Federal budget contained a little-noticed provision titled the Federal Civil Penalties Inflation Adjustment Improvements Act. The Act requires OSHA to increase its monetary penalties for the first time since 1990. For the past 25 years, OSHA has been exempted from a federal law requiring agencies to increase their fines along with inflation. This will change for OSHA's penalties beginning in August 2016. The law first requires an initial penalty "catch-up adjustment." The catch-up adjustment is based on the percentage difference between the Consumer Price Index (CPI) in October 2015 and October 1990. This will likely result in about an 80% increase in the current penalty amounts. After this initial catch-up adjustment, the law requires OSHA to adjust the penalty amount annually for inflation.
Indiana SARA Changes
The Indiana Department of Environmental Management (IDEM) has transferred the Community Right-to-Know program to the Indiana Department of Homeland Security (IDHS), effective immediately. This means Hoosiers will no longer submit their SARA Tier II reports to IDEM through the Regulatory Services Portal (RSP). Instead, you will submit them to IDHS using Tier II Manager. One-stop reporting: Hoosier businesses no longer need to submit three separate reports to the state, LEPC and fire department. Instead, your single submittal through Tier II Manager satisfies all three requirements. Additionally, paying the HC-500 fee associated with the Tier II report is completed as part of the reporting process.
The system should be active and ready later this month, so please visit the IDHS website for additional information as it becomes available: http://in.gov/dhs/3893.htm.
EPA to Extend Comment Period on Pesticide Applicator Certification
EPA has received and considered a number of requests to extend the public comment period on the proposed changes to the certification of pesticide applicators rule. EPA will grant a 30-day extension to the public comment period on the proposed changes to the certification rule. Comments must be submitted no later than December 23, 2015. Comments can be submitted via www.regulations.gov under docket number EPA-HQ-OPP-2011-0183.
Senate Sharply Divided Over WOTUS Rule
Senate Democrats recently blocked a bill aimed at forcing the Obama administration to replace its Clean Water Act rule, but Republicans quickly advanced a disapproval resolution that would simply kill the rule. The measure aimed at replacing the rule needed 60 votes to advance to a full debate, but just four Democrats supported the cloture motion, leaving the bill three votes short, 57-41. The rule would re-define what ditches, wetlands, streams and other features fall under the jurisdiction of the Clean Water Act (CWA) as "waters of the United States" (WOTUS). After the cloture motion failed, Senate Majority Leader Mitch McConnell, who called the WOTUS rule a "cynical and overbearing power grab," brought up the GOP fallback measure, the disapproval resolution sponsored by Joni Ernst, R-Iowa. It only needed a simple majority to proceed, and the Senate voted 55-43 to take it up.
Activist Litigation Threatens Agricultural Productivity
The EPA proposal to revoke food residue tolerances for chlorpyrifos in response to a court-ordered deadline has ignored the thousands of scientific studies that have examined and validated the product's safe use and agricultural importance. Chlorpyrifos is one of the most widely-tested products across the world and is an invaluable tool for growers on a diverse array of crops.
Following an unwarranted lawsuit petition seeking these revocations, the U.S. 9th Circuit Court denied a request from EPA to extend its deadline to make a revocation decision to April 15, 2016. The court instead forced the Agency to respond by October 31, 2015, before EPA had an opportunity to complete its drinking water risk assessment. It is unfortunate that court-mandated deadlines helped result in the Agency's proposal to revoke food residue tolerances for a beneficial and wide-reaching crop protection product. Unnecessary litigation-driven deadlines risk arbitrarily taking away valuable tools from all farmers, and this is just such a scenario. This is a drastic and unnecessary step that is caused by wasteful, agenda-driven litigation. CropLife America (CLA) is confident that due legal and scientific process will make this proposed action unnecessary. CLA will submit comments on EPA's proposal.
Employers: Ready for the "Drone Zone"
The recent proliferation of drones means that employers should plan for the likelihood that they will enter your worksites in the near future, despite tighter government regulation. Employers should develop policies to ensure safety, protection of company trade secrets and address employee privacy concerns. The policy should specifically take control of your own airspace and establish regulation of the "airspace" within your buildings and above your facilities, parking lots and green spaces. You should begin by crafting a policy that identifies and establishes "no drone zones" within and outside of the facility. Your procedure should specifically address how managers and employees should react if they witness policy violations. Your managers should be trained on whether to contact designated company representatives, law enforcement personnel, and/or the FAA if drones are spotted in or above your workplace. Getting in front of these issues before they land on your desk - figuratively or literally - will help prepare you for the 21st century workplace.
New ERG Coming in 2016
The familiar little orange guidebooks, 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
Everyone Loves a Safety Incentive Program - Except OSHA
Over time, several OSHA officials have made their thoughts on safety incentives rather clear, and in fact have gone into great detail. Here is a short summary of those various comments. "We disapprove of safety incentive programs that, for example, offer a pizza party or allow workers to enter a raffle for a new truck. These incentive programs can discourage employees from reporting injuries because they want to receive the reward." "If you have a culture of safety in your workplace, you don't need incentive programs." "We certainly are not opposed to all incentive plans, though. On the contrary, a positive incentive program that encourages or rewards workers for serving on safety and health committees, completing safety and health training, or reporting injuries, illnesses, near-misses or hazards, can encourage worker involvement in safety and health management systems. An incentive program that encourages positive employee involvement is a valuable component of a Voluntary Protection Program quality safety and health management system."
DOT Declares Georgia Driver an Imminent Hazard to Public Safety
DOT has declared a Georgia truck driver to be an imminent hazard to public safety and has ordered him not to operate any commercial motor vehicle in interstate commerce. The driver falsified his medical history on a job application. A DOT investigation revealed that the driver is medically unqualified to operate a commercial motor vehicle in interstate commerce and that he had falsified the medical history section of a recent truck driving job application to conceal a disqualifying medical diagnosis.
On July 6, 2015, while driving a commercial vehicle on Georgia State Route 11, the driver suffered a medical problem, resulting in his truck crossing both lanes of traffic and crashing through a fence before colliding into a parked vehicle. Following the crash, the driver was sent by his employer to a physician who declared him to be medically unqualified; he was subsequently terminated from his employment as a truck driver.
On July 7, 2015, the driver, in a truck driving job application submitted to a different employer, falsified the medical history section to conceal the medical disqualification issued the previous day, which referenced a 2011 disqualifying medical diagnosis. The driver was subsequently hired on the basis of his fraudulent job application and drove trucks for his new employer through September 17, 2015, when his employer became aware of his July 6, 2015 crash and disqualifying medical condition.
Violating an imminent hazard out-of-service order by a CDL holder may result in civil penalties of up to $2,500 and disqualification from operating a commercial vehicle for not less than 180 days for a first offense. A second offense may result in civil penalties of up to $5,000 and disqualification from operating a commercial vehicle for not less than two years. Failure to comply with the provisions of the imminent hazard out-of-service order may also result in criminal charges brought by the U.S. Attorney's Office.
Sleep Apnea Testing Added to DOT's Regulatory Agenda
DOT is taking steps to determine if new rules concerning sleep apnea are needed. The agency is teaming with the Federal Railroad Administration (FRA) on the fact-gathering process, and any new rules that develop could apply to both highway and railroad workers.
According to the agenda, DOT and FRA request data and information concerning the prevalence of moderate-to-severe obstructive sleep apnea (OSA) among individuals occupying safety sensitive positions in rail and highway transportation. The agencies also request information about the potential economic impact and safety benefits associated with regulatory actions that would result in transportation workers in these positions, who exhibit multiple risk factors for OSA, undergoing evaluation by a healthcare professional with expertise in sleep disorders, and subsequent treatment.
Under DOT medical standards for commercial drivers, untreated sleep apnea is considered a respiratory dysfunction that can prevent a driver from being medically certified. In a January 2015 memo, the agency recommended that drivers diagnosed with sleep apnea be referred to a specialist if the medical examiner believes the driver's condition "is in any way likely to interfere with the driver's ability to safely control and drive a commercial motor vehicle." The expected publication date for the Advanced Notice of Proposed Rulemaking (ANPRM) is December 11, 2015.
Federal Wage and Labor Law Poster Updates
MASSACHUSETTS
Unemployment Insurance (Effective date 10/2015) - Massachusetts has revised their UI notice. Along with some formatting changes and the deletion of information regarding the use of a Social Security number for filing claims online, they have added the specification that claimants for UI must be in the United States, its territories, or Canada to claim or certify for UI benefits. This is a substantive change and an updated Massachusetts poster is required. Click here to order.
NEW JERSEY - CITIES
Paid Sick Leave - New Jersey has had a number of cities pass Paid Sick Leave ordinances this year but notices were not released until much later. Included are:
Bloomfield, Effective 07/2015
East Orange, Effective 01/2015
Montclair, Effective 03/2015
Passaic, Effective 01/2015
Paterson, Effective 01/2015
Trenton, Effective 03/2015
This is a substantive change and a new Specialty poster is required of businesses in the respective cities. Click here to order.
WASHINGTON
Job Safety and Health (Effective date 09/2015) - Washington has significantly revised the Safety and Health notice. Many of the changes are cosmetic, but included is the requirement that all injuries that result in amputation or loss of an eye be reported within 24 hours. It is required per the Department of Labor and Industries. This is a substantive change and an updated Washington poster is required. Click here to order.
MICHIGAN
MIOSHA (Effective date 07/2015) - Michigan has released a new version of their Safety and Health notice. Included among the changes are additional requirements that employers report any work-related fatalities to the Department of Licensing and Regulatory Affairs within 8 hours and any inpatient hospitalizations, amputations, and losses of eyes within 24 hours. Non-substantive changes were also made to the phone numbers listed on the MIOSHA, SDS Location and Right-to-Know notices. The notice was released in September 2015 but backdated to July. This is a substantive change and an updated Michigan poster is required. Click here to order.
NORTH DAKOTA
Minimum Wage (Effective date 08/2015) - North Dakota has updated their minimum wage notice, though not the wage itself. Among numerous minor changes was the additional limitation on paid time off compensation. In North Dakota, if an employee separates from the employer, they do not forfeit any accrued paid time off and must be compensated for it with a few exceptions. In addition to the previous exceptions, it is now allowed for employers to withhold payment for paid time off if it was awarded before being earned or if the employer provided written notice of the limitation on payment of awarded paid time off before it was awarded. This is a substantive change and an updated North Dakota poster is required. Click here to order.
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.