International Clients
Australia
Canada
South America
×
<
 
List
 
>
Newsletter
Volume 92
July 6, 2011
Reminder: HazMat Registration Expired on June 30th
If your company transports, or offers for transport, hazardous materials that require placarding by the DOT, they must be registered with the Department of Transportation (DOT). If your company registers with DOT annually, then your HazMat Registration expired on June 30th. If your company registered for a two or three year period, check your registration for the expiration year. A copy of the current registration must be carried in every company vehicle used to transport hazardous materials. You can register and pay the fee online at the DOT's website by clicking here.
Wayne Hunt Receives Award
Congratulations go out to Wayne Hunt with AGRI-CHEM, Inc. in Hopkinsville, KY. Wayne received the Gamma Sigma Delta Distinguished Service Award from the University of Kentucky College of Agriculture. This award is presented annually to a non-alumnus of the UK College of Agriculture to recognize significant contributions and service to Kentucky agriculture. Congratulations to Wayne and a special thanks for allowing us the opportunity to help with the regulatory requirements for over 22 years. AGRI-CHEM, Inc. is one of our original clients dating back to 1990.
U.S. EPA Reviews Asmark Institute's SPCC Tools
This past week Dustin Warder, Melissa Iskra and Allen Summers with the Asmark Institute met with Pam Guffain, Matthew Kastner and Bill Herz with The Fertilizer Institute (TFI) and representatives from U.S. EPA to review the new web-based mySPCC tools for agricultural retailers. MySPCC consists of two tools designed to assist retailers in preparing and complying with SPCC requirements. TFI and the Asmark Institute have been working with U.S. EPA for several years on these tools, which when finalized, will be available through the Asmark Institute free of charge to retailers and the public much like the myRMP tool. We should have details of the launch within 30 days.
Implement of Husbandry: Deadline Extended for Comments
The Federal Motor Carrier Safety Administration (FMCSA) announced on May 31st a request for comments on regulatory guidance pertaining to the applicability of FMCSA regulations for operators of certain farm vehicles and off-road agricultural equipment. Due to the complexity of this issue, FMCSA announced on June 28th that the comment period, originally set to end June 30th, has been extended until August 1, 2011. The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) have been working with numerous commodity groups regarding a response to the questions raised by FMCSA.
We encourage retailers to work through their respective state and national associations to submit comments. Comments should be identified by Federal Docket Management System Number "FMCSA-2011-0146" and submitted by any of the following methods:
  • Federal eRulemaking Portal: www.regulations.gov. Follow the online instructions.
  • Fax: 1-202-493-2251.
  • Mail: Docket Management Facility, (M-30), U.S. Department of Transportation (DOT), 1200 New Jersey Avenue, SE, West Building, Ground Floor, Room 12-140, Washington, DC 20590-0001.
  • Hand Delivery: Same as mail address above, between 9 am and 5 pm, ET, Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods. All submissions must include the agency name and docket number for this notice.
CropLife America to Work Around Procedural Obstacles to H.R. 872 in the Senate
CropLife America reports it comes as no surprise that some Senate Democrats are voicing their opposition to H.R. 872, the bill that would exempt pesticide users who spray over water from having to obtain a NPDES permit under the Clean Water Act. The rhetoric will likely continue to ramp up as the bill, which easily passed out of the Senate Agriculture Committee recently by voice vote, moves closer to Senate floor action. It is no secret that Senate Environment & Public Works Committee chair, Senator Barbara Boxer (D-CA), and Water Subcommittee chair, Senator Ben Cardin (D-MD), oppose H.R. 872. Upon H.R. 872's move out of the ag committee, the two Senators placed a joint "hold" on the bill. A spokesman for Senator Cardin said, "Senator Cardin believes the environmental risks posed by this bill require that it receive full and careful consideration through the regular legislative process. By placing a hold on the bill, we ensure that, rather than taking a legislative shortcut to passage, H.R. 872 will be treated with all appropriate deliberation, including the opportunity to offer amendments."
However, most Senators feel differently and are well aware that the looming permit implementation deadline will compel the Senate to act quickly. Senator Saxby Chambliss (R-GA), a member of the Agriculture Panel, emphasized the bipartisan votes the bill earned in the House, "we have had bipartisan support all the way through on that bill. I am very hopeful that at the end of the day we'll have a big vote over here." Ohio Senator Sherrod Brown (D-OH) is also on record, along with many other Democrats, as backing the legislation. CLA and their allies will attempt to convince Senators Boxer and Cardin to release their hold on H.R. 872 in order to allow the bill to move in normal order. CLA has vowed they will position themselves to work around the hold in order to move H.R. 872 using other mechanisms of Senate procedure. Six Governors have submitted a letter in support of H.R. 872; click here to see that letter. Thanks to our friends at CropLife America for their work on this critical issue. Jay Vroom and the CLA staff have devoted an enormous amount of time and talent to helping retailers fight this issue.
Draft Guidance on Identifying Waters Protected by CWA Comment Period Extended
The public comment period has been extended by 30 days for the draft guidance on Identifying Waters Protected by the Clean Water Act due to an influx of requests from state and local officials, as well as other stakeholders requesting more time to provide comments on this important issue. The deadline is now July 31, 2011 and this extension will not alter the schedule for finalizing the guidance. CropLife America will be submitting comments in addition to those submitted by the Water Advocacy Coalition.
Safety School Agenda Announced
The National Agronomic Environmental Health & Safety School has posted the agenda for their August 23-24, 2011 meeting, which will be held at the Doubletree Hotel in Bloomington, IL. Go to www.naehss.org to view the agenda and to register for the school. There are top-level speakers from the USDOT and FMCSA discussing nurse tank inspections and motor vehicle enforcement, and a speaker from USEPA explaining the final Spill Prevention Control & Countermeasure (SPCC) regulations that will impact retailers and farmers who store fuel on site. This is a top-quality national safety school that IFCA is proud to host alongside the MAGIE show. If you are in charge of safety and compliance at your retail plant, you should take advantage of this educational opportunity.
USDA Data Reveals Significant Increase in Nutrient Use Efficiency for U.S. Corn Production
The Fertilizer Institute (TFI) recently announced that between 1980 and 2010, U.S. farmers nearly doubled corn production using slightly fewer fertilizer nutrients than were used in 1980. The announcement, which is based on fertilizer application rate data released at the end of May by the U.S. Department of Agriculture's (USDA) National Agricultural Statistics Service (NASS), was distributed by TFI to 1600 agricultural and environmental reporters.
TFI's press release called attention to the fact that in 1980, farmers grew 6.64 billion bushels of corn using 3.2 pounds of nutrients (nitrogen, phosphorus and potassium) for each bushel and in 2010 they grew 12.45 billion bushels using 1.6 pounds of nutrients per bushel produced. In total, this represents an 87.5 percent increase in production with 4 percent fewer nutrients during that same timeframe. Corn production accounts for half of U.S. fertilizer use and experts estimate that 40 to 60 percent of world food production is attributable to fertilizers.
In conjunction with the release of this data, TFI Vice President of Economic Services Harry Vroomen prepared a presentation incorporating charts and other visual elements that graphically depict some of the key data points included in TFI's announcement of the USDA data. TFI members should feel free to utilize information included within TFI's press release and Vroomen's presentation for discussions of this important and positive fertilizer industry news.
Kentucky Proposed Amendments May Affect Forklifts
According to Gay Dwyer with the AgriBusiness Association of Kentucky, a proposed change to 803 KAR 2:313 that deals with materials handling and storage and appears to impact forklifts. Although the Regulatory Impact Analysis states that employers are not expected to have any new obligations from the proposed changes, it establishes state standards that obviously differ from the federal rules. It specifically dictates rules regarding an employees use of a safety platform, including a requirement that the person on the platform be able to shut off power to the powered industrial truck. This sounds vaguely familiar with some requirements that were removed from the federal rule back around the 2003 era. Watch for the outcome here next month. Click here to access the proposed amendments.
Asmark Institute Participates in MACA Mini Bulk Summit
The Mid America CropLife Association (MACA) recently held its Mini Bulk Summit (Part 2) in St. Louis, Missouri where the EPA rules and regulations were outlined in a very comprehensive program. Melissa Iskra attended the Summit and reported the meeting was organized in a fashion to help answer many of the lingering questions associated with minibulks. Nancy Fitz with EPA, was able to speak and give guidance on the regulations as the countdown is ticking towards the August 16th deadline. A tour was provided by Tri-Rinse, an environmental contractor that specializes in container disposal of all sizes and hazardous waste removal. The tour included the recycling and waste management procedures involved with disposing of unwanted minibulk tanks. A seminar was also given showcasing minibulks that were out of compliance and the actions needed to make them compliant. The summit provided an outreach to many retailers as to who to turn to for recycling needs and what is expected when the regulations are implemented. The new key requirements for refillers are as outlined:
  • One-way valves or tamper evident device on openings other than vents is required.
  • Containers must have a unique serial number/identifying code.
  • Must comply with adopted DOT standards (packing group III).
  • Must be triple rinsed between uses unless filled with the same product and tamper evident and/or one-way valves are intact.
  • Containers are on the registrant's description of acceptable containers.
  • Must have registrant's cleaning instructions and repackaging authorization on hand.
  • For each refill, the date and serial number/code of container and pesticide is recorded.
These rules go into effect on August 16, 2011. For more information, we encourage you to visit the MACA website or U.S. EPA's website.
FWAA Report: Oregon - OSHA Process Safety Management (PSM)
Ben Doornink, Business Manager with the Far West Agribusiness Association, recently published this article in their newsletter. Ben works to research, study, understand and assist members in regulatory issues and works closely with the FWAA Safety Committee on education and training. Ben's article on PSM is an excellent source of information past and present, especially if you are in Oregon. For those of us not located in Oregon, it may very well provide a glimpse into our future. We recommend you review this article closely. Thanks to Ben Doornink and Jim Fitzgerald with the FWAA organization for their work on this issue and for allowing us to share this information in our newsletter.
Recently, the FWAA office has received multiple inquiries regarding the U.S. Occupational Safety and Health Administration's (OSHA) Process Safety Management (PSM) Regulation, how it is implemented in different states and how it applies to our retail members. The purpose of the PSM Regulation (29CFR § 1910.119) is "to prevent or minimize the consequences of catastrophic releases of toxic, reactive, flammable or explosive chemicals."
The rule applies to any general industry facility with a process: That involves one of the highly hazardous chemicals, at or above a specific Threshold Quantity as listed in Appendix A of 1910.119; or, That involves a flammable gas or liquid in a quantity of 10,000 lbs or more.
Federal OSHA proposed the PSM Standard in 1990 with an exemption for "Retail Facilities." The preamble of the proposed standard stated OSHA's intent with respect to this exemption: "OSHA does not believe that retail facilities...present the same degree of hazard to employees as those workplaces in (b)(1) [of the proposed PSM Standard], that would require a comprehensive hazard analysis and management system. Certainly, highly hazardous chemicals may be present in [retail] operations. However, regarding retail facilities, chemicals are in smaller volume packages, containers and allotments, making a massive release unlikely."
When the final PSM Standard passed in early 1992, OSHA retained the "retail facilities" exemption, yet did not define the term "retail facilities" within the regulation itself. In 1992, less than one year after the promulgation of the PSM Standard, OSHA defined the "retail facilities" exemption in its Instruction CPL 02-02-045A: "With respect to enforcement of the PSM standard, a retail facility means an establishment that would otherwise be subject to the PSM standard at which more than half of the income is obtained from direct sales to end users."
After 13 years of consistently interpreting the term "retail facility," in 2005 OSHA issued an interpretation that substantially limited the scope of the exemption, stating that a "retail facility" is an establishment, which would otherwise be subject to the PSM Standard, at which more than half of the income is obtained from direct sales of the PSM-covered "highly hazardous chemical" to end users.
FWAA has recently received several requests regarding how the PSM standard is applied to retail facilities that handle anhydrous ammonia in the state of Oregon. Oregon is not a Federal OSHA state, meaning that it has adopted its own OSHA program under a plan approved by Federal OSHA. This plan must include standards that are at least as effective as the Federal standards, but some specific requirements and interpretations may vary.
In Oregon, the PSM rule was adopted into Division 2, Subdivision H, as OAR-437-002-1910.119. Although Oregon OSHA (OR-OSHA) has adopted the same PSM rule, its interpretation of the exemption for "retail facilities" varies slightly. Oregon OSHA has determined that facilities in Oregon that process (use, store, handle, move, etc.) anhydrous ammonia in large volume containers do not meet the intended exemption criteria for a "retail facility" because the release of ammonia from a large volume container is a potentially catastrophic event that could include serious consequences for exposed employees. In this case, the percentage of facility's sales to the end user (the definition used by Federal OSHA) is not considered relevant because it does not minimize the possibility of a catastrophic release.
Here are examples of Oregon OSHA's interpretation of the PSM rule using a facility with anhydrous ammonia. According to Appendix A of 1910.119, the Threshold Quantity of anhydrous ammonia is 10,000 pounds (about 1,943 gallons). Facility A has 1 tank on its lot with a volume of 10,000 pounds of NH3. It is subject to the PSM Rule. Facility B has 1 tank on its lot with a volume of 5,000 pounds of NH3. It is not subject to the PSM Rule. Facility C has 2 separate tanks (5,000 pounds of NH3 each) on its lot in separate places with a total combined volume of 10,000 pounds of NH3. It is not subject to the PSM Rule because the "processes" involving NH3 are each below the Threshold Quantity even though the total amount of NH3 on the facility's lot is greater than 10,000 pounds.
As this rule and others relate to your facilities in various states, remember that rules and interpretations may and do differ from state-to-state. Click here for a copy of the letter Oregon OSHA sent to facilities within the State.
Supreme Court Says EPA Has Authority to Regulate Climate Change
The U.S. Supreme Court this week upheld EPA's authority under the Clean Air Act (CAA) to regulate greenhouse gas emissions (GHG) and address other air pollution contributors to so-called "climate change." The high court said its 2007 decision "made plain that emissions of carbon dioxide qualify as air pollution subject to regulation" under the CAA. The court heard American Power Company v. Connecticut, a case brought by the power company to challenge the state's claims against alleged plant pollution under federal CAA regulations. The court said its previous decision "speaks directly to emissions of carbon dioxide from the defendant's plant." The court also referenced in detail EPA's ongoing rulemaking to set standards on GHG emissions from fossil-fueled plants by May 2012.
Declaration of Drought Emergency Sought in Alabama
Drought conditions have impacted Alabama's crop yields, imperiling farmers in the southern third of the state to the point where federal emergency aid will be needed, says Commissioner John McMillan of the State Department of Agriculture & Industries. Supporting McMillan's concerns about the summer drought is today's crop acreage report from the U.S. Department of Agriculture, stating that conditions for about one-third of Alabama's leading crops range from poor to very poor. Only 27 percent are rated good or excellent. "Right now, all counties in the southern tier of Alabama are suffering an extreme drought. Other counties will follow suit if our current low rainfall pattern persists."
New Fertilizer Company To Serve Ohio, Kentucky And Indiana
Ag Distributors, Inc. (ADI) and Waterway Ag, Inc. have joined forces to form an "LLC" to distribute wholesale fertilizer products in Ohio, Kentucky and Indiana under the name Mid States Ag Sales. ADI, headquartered near Nashville, TN, is a provider of bulk and bagged fertilizer to independent retailers across the Southeast. Waterway Ag, Inc. is a wholesale fertilizer distributor that operates a river terminal in Metropolis, IL. The newly formed Mid States Ag Sales will utilize the distribution system of both parent organizations with operations beginning July 1st. Mid States Ag Sales will service its trade territory with two dedicated salesmen, Jerry Purcell, who can be reached at 606-679-5046 and Randy Bradshaw, 615-584-8855.
Some State DOTs Promote Tolls on Interstate Highways
Representatives from three state departments of transportation have joined with the International Bridge, Tunnel and Turnpike Association in calling for the federal government to loosen its stance on converting freeways to tollways. Currently, the only way freeways can become toll roads is for a state or agency to apply under one of six Federal Highway Administration pilot programs. Even then, as Pennsylvania failed to do in the past few years (I-80), a state has to prove that tolls are the only way to make the upgrades. During the application process, Pennsylvania officials failed to convince the Federal Highway Administration that 100 percent of the toll proceeds would remain with the roadway, and the application was turned aside. A state can apply as many times as it wants for authority under FHWA's tolling pilot programs, but Pennsylvania seems to have stopped at three tries. According to the latest from U.S. Transportation Secretary Ray LaHood, tolling will remain an option for new highways and lane capacity only, not for existing roads.
INDIANA: New Laws Kicked Off Last Friday, July 1st
New regulations involving guns, immigration and texting are now in place. A ban on texting behind the wheel for all drivers is now in effect. Other laws include tightened eligibility requirements for unemployment insurance and a cut in the corporate income tax rate. New education laws deal with using tax money to help families send their children to private schools, new standards for teacher evaluation and an expansion of charter schools. The immigration law requires state and local agencies and public contractors to verify the citizenship of their employees using the E-Verify system. Some parts of that legislation are tied up in court. Another new law allows a person to carry a handgun without a license on their own property or in their own vehicle. That law also allows a person to carry a handgun on another person's private property or in another person's vehicle with that person's permission. A new law also allows business owners to refuse service to someone carrying a handgun if they choose. Synthetic marijuana known as spice or K2 is now illegal in Indiana. The laws and penalties are identical to regular marijuana. A full list of the new laws can be found at www.in.gov/gov/billwatch.htm.
"The Dirty Dozen" Continues to Ignore Science
Each year the Environmental Working Group (EWG) releases "The Dirty Dozen" report, listing what the organization considers the most dangerous produce based on the frequency of crop protection product residue detections. This information, based on data presented in the U.S. Department of Agriculture's (USDA) Pesticide Data Program (PDP) report, is wildly distorted by EWG, not based upon scientific or statistical methods, and is used to incite consumer concerns regarding food safety. EWG's report fails to mention the safety of crop protection products, their many benefits and their important role in modern U.S. food production.
As you talk to people about "The Dirty Dozen" report, CropLife America recommends you use the talking points below to help correct the record on this important issue.
A.) The mere detection of crop protection residue in produce does not indicate harm.
  1. Residues are permitted by U.S. government safety standards, and are regulated to levels that are considered safe based on average daily consumption, with extra margins of safety built in.
  2. USDA's most recent PDP report shows that in 2009 an overwhelming 97 percent of the samples tested for pesticide residues were within legal allowable limits for all of the pesticides tested.
  3. Forty-three percent of the 11,181 food samples tested had no detectable pesticide residues, and those exceeding established tolerances were detected in only 0.3 percent of the samples tested.
B.) The most important component of modern agriculture is safety - and food is rigorously tested to ensure safety.
  1. The agriculture industry supports education and certification that make sure farmers use modern production practices, and that all inputs are applied with care and only when required to protect human and animal health and the environment.
  2. The agriculture industry works closely with government agencies and other organizations to ensure that farmers have access to the technologies required to support modern and safe agriculture practices.
C.) Crop protection products are heavily regulated for human and environmental safety, and provide many consumer benefits.
  1. Crop protection products allow for year-round access to healthy fruits and vegetables at affordable prices. With diminished yields, prices would rise dramatically.
  2. Availability of our favorite fruits and vegetables would be severely limited without the use of crop protection products. Without the use of fumigants strawberry yields would decline by 70 percent and without the application of insecticides 64 percent of tomatoes would be lost.
  3. Fresh produce is an integral part of a healthy diet as outlined in USDA's revised dietary guidelines. Fruits and vegetables are rich in vitamins and increased consumption helps to fight cancer and other diseases.
OSHA Launches Interactive Web Site for Injury Recordkeeping Rule
The Occupational Safety and Health Administration recently unveiled a new interactive web tool to help users determine whether injuries and illnesses are work-related and recordable under the OSHA Recordkeeping rules. The OSHA Recordkeeping Advisor is an interactive tool that simulates an employer's interaction with a Recordkeeping rules expert. The Advisor relies on the users' responses to questions and automatically adapts to the situation presented. Responses put into the program are strictly confidential and the system does not record or store any of the information. The Advisor helps employers determine:
  • Whether an injury or illness (or related event) is work-related
  • Whether an event or exposure at home or on travel is work-related
  • Whether an exception applies to the injury or illness
  • Whether a work-related injury or illness needs to be recorded
  • Which provisions of the regulations apply when recording a work-related injury or illness
IRS Increases Mileage Rate to 55.5 Cents Per Mile
In recognition of higher gasoline prices, IRS recently announced an increase in the optional standard mileage rates for the final six months of 2011. Taxpayers may use the optional standard rates to calculate the deductible costs of operating an automobile for business and other purposes. The rate will increase to 55.5 cents a mile for all business miles driven from July 1, 2011 through December 31, 2011. This is an increase of 4.5 cents from the 51 cent rate in effect for the first six months of 2011. The new six-month rate for computing deductible medical or moving expenses will also increase by 4.5 cents to 23.5 cents a mile, up from 19 cents for the first six months of 2011. The rate for providing services for charitable organizations is set by statute, not the IRS, and remains at 14 cents a mile. Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.
Johanns Blasts EPA "Charm Offensive"
Senator Mike Johanns (R-NE) recently called EPA's "charm offensive" to improve its image with rural America "disingenuous to farmers," and said the agency continues to engage in regulatory "overreach." "Back home in Nebraska, like others states in this great country, we make agreements on a handshake, and believe that if you shake someone's hand, you can trust them. That's the way it works," the former Bush Administration secretary of agriculture said on the Senate floor. "But, unfortunately, within the bureaucratic walls of EPA, that's not the case. Instead of spouting charming verbiage about increased regulation, EPA should be looking for ways to work with farmers and ranchers and small businesses to find solutions to environmental challenges while creating jobs for Americans who are out of work...unfortunately, based on what we've seen over the past few years, EPA has used agriculture producers as offenders, not partners."
State Labor Law Poster Updates:
New State All-In-One Labor Law Poster can be ordered by clicking here.
Iowa - EEO - Effective June 2011
Iowa has added pregnancy as a protected class as a substantive change. There was also a non-substantive change with the quote at the bottom being changed from "Our liberties we prize and our rights we will maintain" to the Martin Luther King, Jr. quote, "Injustice anywhere is a threat to justice everywhere." This is a material substantive change and a new Iowa Labor Law Poster is required.
North Carolina - E-Verify - Effective October 2011
Private employers with 25 or more employees and all government agencies are required to utilize the E-Verify system beginning October 1, 2011. The effective date timeline is as follows: October 1, 2011 for government agencies; October 1, 2012 for private employers with 500 or more employees; January 1, 2013 for private employers 100 or more, but fewer than 500 employees; and July 1, 2013 for private employers with 25 or more, but fewer than 100 employees. This is a material substantive change and an E-Verify & Right to Work poster is required for all employers in North Carolina. The notice is required in English and Spanish; and you must post both an E-Verify notice and a Right to Work notice.
Alabama - E-Verify - Effective January 2012
All employers are required to utilize the E-Verify system. The use of the E-Verify system is an active defense against prosecution for employing illegal immigrants under the law. The requirements will be phased in over the next year beginning January 1, 2012 with Section 15 of the law, officially banning the employment of illegal immigrants among other things, going into effect on April 1, 2012. This is a material substantive change and an E-Verify & Right to Work poster is required for all employers in Alabama. The notice is required in English and Spanish; and you must post both an E-Verify notice and a Right to Work notice.
Tennessee - E-Verify - Effective January 2012
All employers with 6 or more employees will be required to utilize the E-Verify system. The requirements will be phased in beginning January 1, 2012. The effective date timeline is as follows: January 1, 2012 for employers with 500 or more employees and all government entities; July 1, 2012 for employers with 200 to 499 employees; and January 1, 2013 for employers with 6 to 199 employees. This is a material substantive change and an E-Verify & Right to Work poster is required for all employers in Tennessee. The notice is required in English and Spanish; and you must post both an E-Verify notice and a Right to Work notice.
2011 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.
Reminder: HazMat Registration Expired on June 30th
If your company transports, or offers for transport, hazardous materials that require placarding by the DOT, they must be registered with the Department of Transportation (DOT). If your company registers with DOT annually, then your HazMat Registration expired on June 30th. If your company registered for a two or three year period, check your registration for the expiration year. A copy of the current registration must be carried in every company vehicle used to transport hazardous materials. You can register and pay the fee online at the DOT's website by clicking here.
Wayne Hunt Receives Award
Congratulations go out to Wayne Hunt with AGRI-CHEM, Inc. in Hopkinsville, KY. Wayne received the Gamma Sigma Delta Distinguished Service Award from the University of Kentucky College of Agriculture. This award is presented annually to a non-alumnus of the UK College of Agriculture to recognize significant contributions and service to Kentucky agriculture. Congratulations to Wayne and a special thanks for allowing us the opportunity to help with the regulatory requirements for over 22 years. AGRI-CHEM, Inc. is one of our original clients dating back to 1990.
U.S. EPA Reviews Asmark Institute's SPCC Tools
This past week Dustin Warder, Melissa Iskra and Allen Summers with the Asmark Institute met with Pam Guffain, Matthew Kastner and Bill Herz with The Fertilizer Institute (TFI) and representatives from U.S. EPA to review the new web-based mySPCC tools for agricultural retailers. MySPCC consists of two tools designed to assist retailers in preparing and complying with SPCC requirements. TFI and the Asmark Institute have been working with U.S. EPA for several years on these tools, which when finalized, will be available through the Asmark Institute free of charge to retailers and the public much like the myRMP tool. We should have details of the launch within 30 days.
Implement of Husbandry: Deadline Extended for Comments
The Federal Motor Carrier Safety Administration (FMCSA) announced on May 31st a request for comments on regulatory guidance pertaining to the applicability of FMCSA regulations for operators of certain farm vehicles and off-road agricultural equipment. Due to the complexity of this issue, FMCSA announced on June 28th that the comment period, originally set to end June 30th, has been extended until August 1, 2011. The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) have been working with numerous commodity groups regarding a response to the questions raised by FMCSA.
We encourage retailers to work through their respective state and national associations to submit comments. Comments should be identified by Federal Docket Management System Number "FMCSA-2011-0146" and submitted by any of the following methods:
  • Federal eRulemaking Portal: www.regulations.gov. Follow the online instructions.
  • Fax: 1-202-493-2251.
  • Mail: Docket Management Facility, (M-30), U.S. Department of Transportation (DOT), 1200 New Jersey Avenue, SE, West Building, Ground Floor, Room 12-140, Washington, DC 20590-0001.
  • Hand Delivery: Same as mail address above, between 9 am and 5 pm, ET, Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods. All submissions must include the agency name and docket number for this notice.
CropLife America to Work Around Procedural Obstacles to H.R. 872 in the Senate
CropLife America reports it comes as no surprise that some Senate Democrats are voicing their opposition to H.R. 872, the bill that would exempt pesticide users who spray over water from having to obtain a NPDES permit under the Clean Water Act. The rhetoric will likely continue to ramp up as the bill, which easily passed out of the Senate Agriculture Committee recently by voice vote, moves closer to Senate floor action. It is no secret that Senate Environment & Public Works Committee chair, Senator Barbara Boxer (D-CA), and Water Subcommittee chair, Senator Ben Cardin (D-MD), oppose H.R. 872. Upon H.R. 872's move out of the ag committee, the two Senators placed a joint "hold" on the bill. A spokesman for Senator Cardin said, "Senator Cardin believes the environmental risks posed by this bill require that it receive full and careful consideration through the regular legislative process. By placing a hold on the bill, we ensure that, rather than taking a legislative shortcut to passage, H.R. 872 will be treated with all appropriate deliberation, including the opportunity to offer amendments."
However, most Senators feel differently and are well aware that the looming permit implementation deadline will compel the Senate to act quickly. Senator Saxby Chambliss (R-GA), a member of the Agriculture Panel, emphasized the bipartisan votes the bill earned in the House, "we have had bipartisan support all the way through on that bill. I am very hopeful that at the end of the day we'll have a big vote over here." Ohio Senator Sherrod Brown (D-OH) is also on record, along with many other Democrats, as backing the legislation. CLA and their allies will attempt to convince Senators Boxer and Cardin to release their hold on H.R. 872 in order to allow the bill to move in normal order. CLA has vowed they will position themselves to work around the hold in order to move H.R. 872 using other mechanisms of Senate procedure. Six Governors have submitted a letter in support of H.R. 872; click here to see that letter. Thanks to our friends at CropLife America for their work on this critical issue. Jay Vroom and the CLA staff have devoted an enormous amount of time and talent to helping retailers fight this issue.
Draft Guidance on Identifying Waters Protected by CWA Comment Period Extended
The public comment period has been extended by 30 days for the draft guidance on Identifying Waters Protected by the Clean Water Act due to an influx of requests from state and local officials, as well as other stakeholders requesting more time to provide comments on this important issue. The deadline is now July 31, 2011 and this extension will not alter the schedule for finalizing the guidance. CropLife America will be submitting comments in addition to those submitted by the Water Advocacy Coalition.
Safety School Agenda Announced
The National Agronomic Environmental Health & Safety School has posted the agenda for their August 23-24, 2011 meeting, which will be held at the Doubletree Hotel in Bloomington, IL. Go to www.naehss.org to view the agenda and to register for the school. There are top-level speakers from the USDOT and FMCSA discussing nurse tank inspections and motor vehicle enforcement, and a speaker from USEPA explaining the final Spill Prevention Control & Countermeasure (SPCC) regulations that will impact retailers and farmers who store fuel on site. This is a top-quality national safety school that IFCA is proud to host alongside the MAGIE show. If you are in charge of safety and compliance at your retail plant, you should take advantage of this educational opportunity.
USDA Data Reveals Significant Increase in Nutrient Use Efficiency for U.S. Corn Production
The Fertilizer Institute (TFI) recently announced that between 1980 and 2010, U.S. farmers nearly doubled corn production using slightly fewer fertilizer nutrients than were used in 1980. The announcement, which is based on fertilizer application rate data released at the end of May by the U.S. Department of Agriculture's (USDA) National Agricultural Statistics Service (NASS), was distributed by TFI to 1600 agricultural and environmental reporters.
TFI's press release called attention to the fact that in 1980, farmers grew 6.64 billion bushels of corn using 3.2 pounds of nutrients (nitrogen, phosphorus and potassium) for each bushel and in 2010 they grew 12.45 billion bushels using 1.6 pounds of nutrients per bushel produced. In total, this represents an 87.5 percent increase in production with 4 percent fewer nutrients during that same timeframe. Corn production accounts for half of U.S. fertilizer use and experts estimate that 40 to 60 percent of world food production is attributable to fertilizers.
In conjunction with the release of this data, TFI Vice President of Economic Services Harry Vroomen prepared a presentation incorporating charts and other visual elements that graphically depict some of the key data points included in TFI's announcement of the USDA data. TFI members should feel free to utilize information included within TFI's press release and Vroomen's presentation for discussions of this important and positive fertilizer industry news.
Kentucky Proposed Amendments May Affect Forklifts
According to Gay Dwyer with the AgriBusiness Association of Kentucky, a proposed change to 803 KAR 2:313 that deals with materials handling and storage and appears to impact forklifts. Although the Regulatory Impact Analysis states that employers are not expected to have any new obligations from the proposed changes, it establishes state standards that obviously differ from the federal rules. It specifically dictates rules regarding an employees use of a safety platform, including a requirement that the person on the platform be able to shut off power to the powered industrial truck. This sounds vaguely familiar with some requirements that were removed from the federal rule back around the 2003 era. Watch for the outcome here next month. Click here to access the proposed amendments.
Asmark Institute Participates in MACA Mini Bulk Summit
The Mid America CropLife Association (MACA) recently held its Mini Bulk Summit (Part 2) in St. Louis, Missouri where the EPA rules and regulations were outlined in a very comprehensive program. Melissa Iskra attended the Summit and reported the meeting was organized in a fashion to help answer many of the lingering questions associated with minibulks. Nancy Fitz with EPA, was able to speak and give guidance on the regulations as the countdown is ticking towards the August 16th deadline. A tour was provided by Tri-Rinse, an environmental contractor that specializes in container disposal of all sizes and hazardous waste removal. The tour included the recycling and waste management procedures involved with disposing of unwanted minibulk tanks. A seminar was also given showcasing minibulks that were out of compliance and the actions needed to make them compliant. The summit provided an outreach to many retailers as to who to turn to for recycling needs and what is expected when the regulations are implemented. The new key requirements for refillers are as outlined:
  • One-way valves or tamper evident device on openings other than vents is required.
  • Containers must have a unique serial number/identifying code.
  • Must comply with adopted DOT standards (packing group III).
  • Must be triple rinsed between uses unless filled with the same product and tamper evident and/or one-way valves are intact.
  • Containers are on the registrant's description of acceptable containers.
  • Must have registrant's cleaning instructions and repackaging authorization on hand.
  • For each refill, the date and serial number/code of container and pesticide is recorded.
These rules go into effect on August 16, 2011. For more information, we encourage you to visit the MACA website or U.S. EPA's website.
FWAA Report: Oregon - OSHA Process Safety Management (PSM)
Ben Doornink, Business Manager with the Far West Agribusiness Association, recently published this article in their newsletter. Ben works to research, study, understand and assist members in regulatory issues and works closely with the FWAA Safety Committee on education and training. Ben's article on PSM is an excellent source of information past and present, especially if you are in Oregon. For those of us not located in Oregon, it may very well provide a glimpse into our future. We recommend you review this article closely. Thanks to Ben Doornink and Jim Fitzgerald with the FWAA organization for their work on this issue and for allowing us to share this information in our newsletter.
Recently, the FWAA office has received multiple inquiries regarding the U.S. Occupational Safety and Health Administration's (OSHA) Process Safety Management (PSM) Regulation, how it is implemented in different states and how it applies to our retail members. The purpose of the PSM Regulation (29CFR § 1910.119) is "to prevent or minimize the consequences of catastrophic releases of toxic, reactive, flammable or explosive chemicals."
The rule applies to any general industry facility with a process: That involves one of the highly hazardous chemicals, at or above a specific Threshold Quantity as listed in Appendix A of 1910.119; or, That involves a flammable gas or liquid in a quantity of 10,000 lbs or more.
Federal OSHA proposed the PSM Standard in 1990 with an exemption for "Retail Facilities." The preamble of the proposed standard stated OSHA's intent with respect to this exemption: "OSHA does not believe that retail facilities...present the same degree of hazard to employees as those workplaces in (b)(1) [of the proposed PSM Standard], that would require a comprehensive hazard analysis and management system. Certainly, highly hazardous chemicals may be present in [retail] operations. However, regarding retail facilities, chemicals are in smaller volume packages, containers and allotments, making a massive release unlikely."
When the final PSM Standard passed in early 1992, OSHA retained the "retail facilities" exemption, yet did not define the term "retail facilities" within the regulation itself. In 1992, less than one year after the promulgation of the PSM Standard, OSHA defined the "retail facilities" exemption in its Instruction CPL 02-02-045A: "With respect to enforcement of the PSM standard, a retail facility means an establishment that would otherwise be subject to the PSM standard at which more than half of the income is obtained from direct sales to end users."
After 13 years of consistently interpreting the term "retail facility," in 2005 OSHA issued an interpretation that substantially limited the scope of the exemption, stating that a "retail facility" is an establishment, which would otherwise be subject to the PSM Standard, at which more than half of the income is obtained from direct sales of the PSM-covered "highly hazardous chemical" to end users.
FWAA has recently received several requests regarding how the PSM standard is applied to retail facilities that handle anhydrous ammonia in the state of Oregon. Oregon is not a Federal OSHA state, meaning that it has adopted its own OSHA program under a plan approved by Federal OSHA. This plan must include standards that are at least as effective as the Federal standards, but some specific requirements and interpretations may vary.
In Oregon, the PSM rule was adopted into Division 2, Subdivision H, as OAR-437-002-1910.119. Although Oregon OSHA (OR-OSHA) has adopted the same PSM rule, its interpretation of the exemption for "retail facilities" varies slightly. Oregon OSHA has determined that facilities in Oregon that process (use, store, handle, move, etc.) anhydrous ammonia in large volume containers do not meet the intended exemption criteria for a "retail facility" because the release of ammonia from a large volume container is a potentially catastrophic event that could include serious consequences for exposed employees. In this case, the percentage of facility's sales to the end user (the definition used by Federal OSHA) is not considered relevant because it does not minimize the possibility of a catastrophic release.
Here are examples of Oregon OSHA's interpretation of the PSM rule using a facility with anhydrous ammonia. According to Appendix A of 1910.119, the Threshold Quantity of anhydrous ammonia is 10,000 pounds (about 1,943 gallons). Facility A has 1 tank on its lot with a volume of 10,000 pounds of NH3. It is subject to the PSM Rule. Facility B has 1 tank on its lot with a volume of 5,000 pounds of NH3. It is not subject to the PSM Rule. Facility C has 2 separate tanks (5,000 pounds of NH3 each) on its lot in separate places with a total combined volume of 10,000 pounds of NH3. It is not subject to the PSM Rule because the "processes" involving NH3 are each below the Threshold Quantity even though the total amount of NH3 on the facility's lot is greater than 10,000 pounds.
As this rule and others relate to your facilities in various states, remember that rules and interpretations may and do differ from state-to-state. Click here for a copy of the letter Oregon OSHA sent to facilities within the State.
Supreme Court Says EPA Has Authority to Regulate Climate Change
The U.S. Supreme Court this week upheld EPA's authority under the Clean Air Act (CAA) to regulate greenhouse gas emissions (GHG) and address other air pollution contributors to so-called "climate change." The high court said its 2007 decision "made plain that emissions of carbon dioxide qualify as air pollution subject to regulation" under the CAA. The court heard American Power Company v. Connecticut, a case brought by the power company to challenge the state's claims against alleged plant pollution under federal CAA regulations. The court said its previous decision "speaks directly to emissions of carbon dioxide from the defendant's plant." The court also referenced in detail EPA's ongoing rulemaking to set standards on GHG emissions from fossil-fueled plants by May 2012.
Declaration of Drought Emergency Sought in Alabama
Drought conditions have impacted Alabama's crop yields, imperiling farmers in the southern third of the state to the point where federal emergency aid will be needed, says Commissioner John McMillan of the State Department of Agriculture & Industries. Supporting McMillan's concerns about the summer drought is today's crop acreage report from the U.S. Department of Agriculture, stating that conditions for about one-third of Alabama's leading crops range from poor to very poor. Only 27 percent are rated good or excellent. "Right now, all counties in the southern tier of Alabama are suffering an extreme drought. Other counties will follow suit if our current low rainfall pattern persists."
New Fertilizer Company To Serve Ohio, Kentucky And Indiana
Ag Distributors, Inc. (ADI) and Waterway Ag, Inc. have joined forces to form an "LLC" to distribute wholesale fertilizer products in Ohio, Kentucky and Indiana under the name Mid States Ag Sales. ADI, headquartered near Nashville, TN, is a provider of bulk and bagged fertilizer to independent retailers across the Southeast. Waterway Ag, Inc. is a wholesale fertilizer distributor that operates a river terminal in Metropolis, IL. The newly formed Mid States Ag Sales will utilize the distribution system of both parent organizations with operations beginning July 1st. Mid States Ag Sales will service its trade territory with two dedicated salesmen, Jerry Purcell, who can be reached at 606-679-5046 and Randy Bradshaw, 615-584-8855.
Some State DOTs Promote Tolls on Interstate Highways
Representatives from three state departments of transportation have joined with the International Bridge, Tunnel and Turnpike Association in calling for the federal government to loosen its stance on converting freeways to tollways. Currently, the only way freeways can become toll roads is for a state or agency to apply under one of six Federal Highway Administration pilot programs. Even then, as Pennsylvania failed to do in the past few years (I-80), a state has to prove that tolls are the only way to make the upgrades. During the application process, Pennsylvania officials failed to convince the Federal Highway Administration that 100 percent of the toll proceeds would remain with the roadway, and the application was turned aside. A state can apply as many times as it wants for authority under FHWA's tolling pilot programs, but Pennsylvania seems to have stopped at three tries. According to the latest from U.S. Transportation Secretary Ray LaHood, tolling will remain an option for new highways and lane capacity only, not for existing roads.
INDIANA: New Laws Kicked Off Last Friday, July 1st
New regulations involving guns, immigration and texting are now in place. A ban on texting behind the wheel for all drivers is now in effect. Other laws include tightened eligibility requirements for unemployment insurance and a cut in the corporate income tax rate. New education laws deal with using tax money to help families send their children to private schools, new standards for teacher evaluation and an expansion of charter schools. The immigration law requires state and local agencies and public contractors to verify the citizenship of their employees using the E-Verify system. Some parts of that legislation are tied up in court. Another new law allows a person to carry a handgun without a license on their own property or in their own vehicle. That law also allows a person to carry a handgun on another person's private property or in another person's vehicle with that person's permission. A new law also allows business owners to refuse service to someone carrying a handgun if they choose. Synthetic marijuana known as spice or K2 is now illegal in Indiana. The laws and penalties are identical to regular marijuana. A full list of the new laws can be found at www.in.gov/gov/billwatch.htm.
"The Dirty Dozen" Continues to Ignore Science
Each year the Environmental Working Group (EWG) releases "The Dirty Dozen" report, listing what the organization considers the most dangerous produce based on the frequency of crop protection product residue detections. This information, based on data presented in the U.S. Department of Agriculture's (USDA) Pesticide Data Program (PDP) report, is wildly distorted by EWG, not based upon scientific or statistical methods, and is used to incite consumer concerns regarding food safety. EWG's report fails to mention the safety of crop protection products, their many benefits and their important role in modern U.S. food production.
As you talk to people about "The Dirty Dozen" report, CropLife America recommends you use the talking points below to help correct the record on this important issue.
A.) The mere detection of crop protection residue in produce does not indicate harm.
  1. Residues are permitted by U.S. government safety standards, and are regulated to levels that are considered safe based on average daily consumption, with extra margins of safety built in.
  2. USDA's most recent PDP report shows that in 2009 an overwhelming 97 percent of the samples tested for pesticide residues were within legal allowable limits for all of the pesticides tested.
  3. Forty-three percent of the 11,181 food samples tested had no detectable pesticide residues, and those exceeding established tolerances were detected in only 0.3 percent of the samples tested.
B.) The most important component of modern agriculture is safety - and food is rigorously tested to ensure safety.
  1. The agriculture industry supports education and certification that make sure farmers use modern production practices, and that all inputs are applied with care and only when required to protect human and animal health and the environment.
  2. The agriculture industry works closely with government agencies and other organizations to ensure that farmers have access to the technologies required to support modern and safe agriculture practices.
C.) Crop protection products are heavily regulated for human and environmental safety, and provide many consumer benefits.
  1. Crop protection products allow for year-round access to healthy fruits and vegetables at affordable prices. With diminished yields, prices would rise dramatically.
  2. Availability of our favorite fruits and vegetables would be severely limited without the use of crop protection products. Without the use of fumigants strawberry yields would decline by 70 percent and without the application of insecticides 64 percent of tomatoes would be lost.
  3. Fresh produce is an integral part of a healthy diet as outlined in USDA's revised dietary guidelines. Fruits and vegetables are rich in vitamins and increased consumption helps to fight cancer and other diseases.
OSHA Launches Interactive Web Site for Injury Recordkeeping Rule
The Occupational Safety and Health Administration recently unveiled a new interactive web tool to help users determine whether injuries and illnesses are work-related and recordable under the OSHA Recordkeeping rules. The OSHA Recordkeeping Advisor is an interactive tool that simulates an employer's interaction with a Recordkeeping rules expert. The Advisor relies on the users' responses to questions and automatically adapts to the situation presented. Responses put into the program are strictly confidential and the system does not record or store any of the information. The Advisor helps employers determine:
  • Whether an injury or illness (or related event) is work-related
  • Whether an event or exposure at home or on travel is work-related
  • Whether an exception applies to the injury or illness
  • Whether a work-related injury or illness needs to be recorded
  • Which provisions of the regulations apply when recording a work-related injury or illness
IRS Increases Mileage Rate to 55.5 Cents Per Mile
In recognition of higher gasoline prices, IRS recently announced an increase in the optional standard mileage rates for the final six months of 2011. Taxpayers may use the optional standard rates to calculate the deductible costs of operating an automobile for business and other purposes. The rate will increase to 55.5 cents a mile for all business miles driven from July 1, 2011 through December 31, 2011. This is an increase of 4.5 cents from the 51 cent rate in effect for the first six months of 2011. The new six-month rate for computing deductible medical or moving expenses will also increase by 4.5 cents to 23.5 cents a mile, up from 19 cents for the first six months of 2011. The rate for providing services for charitable organizations is set by statute, not the IRS, and remains at 14 cents a mile. Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.
Johanns Blasts EPA "Charm Offensive"
Senator Mike Johanns (R-NE) recently called EPA's "charm offensive" to improve its image with rural America "disingenuous to farmers," and said the agency continues to engage in regulatory "overreach." "Back home in Nebraska, like others states in this great country, we make agreements on a handshake, and believe that if you shake someone's hand, you can trust them. That's the way it works," the former Bush Administration secretary of agriculture said on the Senate floor. "But, unfortunately, within the bureaucratic walls of EPA, that's not the case. Instead of spouting charming verbiage about increased regulation, EPA should be looking for ways to work with farmers and ranchers and small businesses to find solutions to environmental challenges while creating jobs for Americans who are out of work...unfortunately, based on what we've seen over the past few years, EPA has used agriculture producers as offenders, not partners."
State Labor Law Poster Updates:
New State All-In-One Labor Law Poster can be ordered by clicking here.
Iowa - EEO - Effective June 2011
Iowa has added pregnancy as a protected class as a substantive change. There was also a non-substantive change with the quote at the bottom being changed from "Our liberties we prize and our rights we will maintain" to the Martin Luther King, Jr. quote, "Injustice anywhere is a threat to justice everywhere." This is a material substantive change and a new Iowa Labor Law Poster is required.
North Carolina - E-Verify - Effective October 2011
Private employers with 25 or more employees and all government agencies are required to utilize the E-Verify system beginning October 1, 2011. The effective date timeline is as follows: October 1, 2011 for government agencies; October 1, 2012 for private employers with 500 or more employees; January 1, 2013 for private employers 100 or more, but fewer than 500 employees; and July 1, 2013 for private employers with 25 or more, but fewer than 100 employees. This is a material substantive change and an E-Verify & Right to Work poster is required for all employers in North Carolina. The notice is required in English and Spanish; and you must post both an E-Verify notice and a Right to Work notice.
Alabama - E-Verify - Effective January 2012
All employers are required to utilize the E-Verify system. The use of the E-Verify system is an active defense against prosecution for employing illegal immigrants under the law. The requirements will be phased in over the next year beginning January 1, 2012 with Section 15 of the law, officially banning the employment of illegal immigrants among other things, going into effect on April 1, 2012. This is a material substantive change and an E-Verify & Right to Work poster is required for all employers in Alabama. The notice is required in English and Spanish; and you must post both an E-Verify notice and a Right to Work notice.
Tennessee - E-Verify - Effective January 2012
All employers with 6 or more employees will be required to utilize the E-Verify system. The requirements will be phased in beginning January 1, 2012. The effective date timeline is as follows: January 1, 2012 for employers with 500 or more employees and all government entities; July 1, 2012 for employers with 200 to 499 employees; and January 1, 2013 for employers with 6 to 199 employees. This is a material substantive change and an E-Verify & Right to Work poster is required for all employers in Tennessee. The notice is required in English and Spanish; and you must post both an E-Verify notice and a Right to Work notice.
2011 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.