Congress just put the brakes on the Occupational Safety and Health Administration's regulatory overreach.
On July 22, OSHA released an enforcement memorandum rescinding all prior policy documents, letters of interpretation, and memoranda related to the retail exemption to Process Safety Management, a set of procedural, operational and organizational design standards intended to prevent the release of highly hazardous chemicals at manufacturing facilities.
The memo, released without opportunity for public comment and outside of the formal rulemaking process, would force virtually all agricultural retailers that store and sell anhydrous ammonia to comply with PSM.
"OSHA is misguided in trying to apply PSM to ag retailers," said Harold Cooper, ARA Chairman and CEO of Premier Ag Cooperative in Columbus, Ind. "OSHA intentionally exempted ag retailers from PSM since the rule's inception in 1992. Forcing us to comply with regulations aimed at manufacturers would cost my business at least $60,000, and not provide any improvement in worker safety - just more bureaucratic red tape."
In recognition of OSHA's unlawful attempt to revoke the long-standing retailer exemption from the costly PSM standard, Congress included a rider to the appropriations bill passed today.
The bill, Consolidated Appropriations Act of 2016 (H.R. 2029), prohibits OSHA from enforcing its July 22 memo for fiscal year 2016 until the Census Bureau establishes a new North American Industry Classification System code for Farm Supply Retailers. OSHA must also conduct a formal rulemaking process with public comment before any guidance change may be implemented.
The Congressional directive is a significant victory for agricultural retailers. An industry survey estimated the total cost for agricultural retailers to comply with PSM would be greater than $100 million, not including facility upgrades and new equipment.
"This bill puts a stop sign in front of a runaway agency," said ARA President and CEO Daren Coppock. "Congress blocked OSHA's imprudent attempt to require ag retailers to comply with a regulation that doesn't fit our industry. We are willing to work with the Administration to develop targeted, common-sense regulations to improve safety and security at agricultural retail facilities and surrounding communities."
ARA spearheaded a grassroots effort - involving several national and state agribusiness associations and ARA members - to reverse OSHA's rule change. ARA appreciates the bipartisan, bicameral support from House and Senate Appropriators and leadership, who were instrumental in including the language in the bill.
ARA has been pursuing legislative and legal resolutions to this issue since OSHA released its enforcement memo.
While continuing to apply legislative pressure, ARA and The Fertilizer Institute brought suit against the OSHA in the U.S. Circuit Court of Appeals in Washington, D.C., in September. The court recently deferred ruling on OSHA's motion to dismiss the case on jurisdictional grounds. Although not an outright win for ARA and TFI, the ruling allows the case to proceed.
Passage of the appropriations bill provides regulatory relief through the end of the fiscal year. ARA will continue to aggressively pursue a durable solution on the Hill and in the courts, if necessary.
For agricultural retailers, employee and community safety remains the top priority.
In 2014, the industry launched ResponsibleAg, an independent safety and compliance certification program for fertilizer retailers and suppliers. Already, more than 1,800 fertilizer facilities are participating.
ARA and TFI also established the Fertilizer Safety and Health Partners Alliance, a coalition comprised of first responders, safety organizations and government agencies, including OSHA. FSHP's mission emphasizes the safe storage and handling of fertilizers such as ammonium nitrate and anhydrous ammonia, as well as the sharing of emergency response information between the agribusiness communities and first responders.
ARA supports sensible regulations that enhance safety, according to Coppock.
"Any additional regulation placed on agricultural retailers should, first and foremost, improve employee and community safety and security. It should also be scientifically sound, cost-effective and developed transparently with industry input," Coppock added. "OSHA's end-run around formal rulemaking failed all those criteria, which is why Congress saw fit to step in. We believe the courts will uphold our case, as well."