The Missouri Agribusiness Association is committed to the agribusiness industry within the Show-Me State by offering services that will enhance the day-to-day operations of agribusinesses now and in the future.
MO-AG's mission simply states, "The mission of the Missouri Agribusiness Association (MO-AG) is to advocate for the business of agriculture while offering services and networking opportunities for the agribusiness community."
2015 Pyramid of MO-AG Program Sponsors
Click here to view the pyramid in a larger format or click here for the participation form to become a 2016 program sponsor. Thank you to all of our Program Sponsors!
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News You Can Use
MO-AG Winter Convention
The Winter Convention is an event held annually in December and is held in conjunction with the MU Crop Management Conference. The convention features booths, speakers and entertainment for all who attend. This year's convention will be on December 15-16, 2015 at the Holiday Inn Executive Center in Columbia, MO. Click here for the exhibitor brochure and here for the attendee brochure.
PTC Extension Heads To President
The U.S. Senate has approved H.R. 3819 extends implementation of the Positive Train Control (PTC) deadline for three years with an additional 2 years possible if certain benchmarks are met. It is anticipated that the President will sign the bill into law very soon.
MO-AG joined a multitude of other organizations seeking the extension CLICK HERE. Several members of Missouri’s Congressional delegation also supported movement of legislation CLICK HERE. As reported in earlier editions of the MO-AG minute, if PTC extension had failed, the railroads had threatened to shut down rail shipments of many agricultural products.
Asmark PSM Compliance Tools
After many hours of work the Asmark Institute has put together compliance tools to assist ag retail ammonia facilities comply with the new Process Safety Management requirement. These tools are designed to help you set up a PSM program that you will have to maintain on daily basis. Unlike some other regulatory requirements it will take many hours of work to maintain the program throughout the year. Last week, OSHA announced they would be extending the compliance date for PSM at ag retail ammonia facilities from January 22, 2016 to July 22, 2016. While this six month extension is welcome, it will still be extremely challenging given the complexity of this program. MO-AG encourages all ag retail ammonia facilities to begin work to comply as soon as possible.
If you have anhydrous ammonia, you will be required to register a Program Level 3 RMP with USEPA, and USEPA will likely share their list of RMP facilities with OSHA for audits and compliance purposes. Although USEPA has not yet said when they expect ammonia facilities to file a Program Level 3 plan, that announcement may coincide with the new OSHA compliance date of July 22, 2016 so we need to get ready. If you want to preview the Asmark PSM and RMP compliance tools, go to www.asmark.org and click on the yellow and red PSM icon on their homepage. If you are an Asmark client, you can enter your password, or if you registered with Responsible Ag, you can enter your RA password. All others can use the public access portal, which shows all the documents but does not save any of your information for future use. Asmark clients and those registered in Responsible Ag can use the site to save all of their facility information, and return to the site to pick up where you left off as you build your PSM and RMP plans. PSM is definitely not something you will be able to do in one sitting.
We recommend you take a look at the Asmark tools to get a feel for the extent of the documentation that will be required. All the forms are under the RMP section of the PSM/RMP screen, but they correlate to the PSM requirements since many of the requirements are similar. If you have any questions please contact Jeff Leonard at the MO-AG Office.
EPTC Extension Heads To President
The U.S. Senate has approved H.R. 3819 extends implementation of the Positive Train Control (PTC) deadline for three years with an additional 2 years possible if certain benchmarks are met. It is anticipated that the President will sign the bill into law very soon.
MO-AG joined a multitude of other organizations seeking the extension CLICK HERE. Several members of Missouri's Congressional delegation also supported movement of legislation CLICK HERE. As reported in earlier editions of the MO-AG minute, if PTC extension had failed, the railroads had threatened to shut down rail shipments of many agricultural products.
Six Month Extension of PSM Enforcement Delay
MO-AG has worked extensively with the Missouri Congressional delegation regarding OSHA's decision imposing Process Safety Management (PSM) onto anhydrous ammonia facilities. MO-AG would especially thanks Congresswoman Hartlzer and her staff for their efforts on this issue. As a result of these efforts, a letter dated October 22nd has been sent to the Secretary of the Department of Labor expressing concerns about OSHA's unrealistic low-cost estimate of this regulation and asking that OSHA rescind the July 22nd memorandum which invoked the changes. A copy of the letter can be found here: CLICK HERE.
OSHA Extends the Period of PSM Enforcement Discretion
On October 21, OSHA posted the memo extending the period when OSHA will exercise discretion and not enforce the PSM requirements at agricultural retail facilities from January 22, 2016 to July 22, 2016. Please see the note from OSHA below addressing the change along with a link to the place on the OSHA website where it is posted.
OSHA Announcement of the Change in Policy:
On July 22, 2015, the Occupational Safety and Health Administration (OSHA) posted a new policy for the retail facilities exemption under the Process Safety Management Standard (29 CFR 1910.119). To read the new policy memo, please visit 07/22/2015 - Memorandum to Regional Administrators - PSM Retail Exemption Policy.
OSHA received a letter on behalf of the Agricultural Retailers Association, The Fertilizer Institute, and their respective members, asking OSHA to stay enforcement of the Agency's July 22, 2015 PSM Retail Exemption Policy memorandum until final resolution of the legal challenges to the memo, currently pending in the D.C. Circuit. OSHA has decided to grant the stay requested, in part. OSHA intends to extend the PSM Retail Exemption Interim Enforcement Policy, which currently expires on January 22, 2016, for an additional six months. This means that through July 22, 2016, OSHA will continue to exercise its enforcement discretion with 1 respect to the PSM retail exemption in the manner described in the Interim Enforcement Policy. The new interim enforcement policy is posted at
PSM Frequently Asked Questions
A series of frequently asked questions and associated responses regarding the PSM program and its impact on agricultural retail facilities was prepared earlier this fall by TFI and is available here.
TFI and ARA Plan Soon to File Motion to Stay Change to PSM Retail Exemption
TFI and ARA are putting the finishing touches on a motion to stay the change to the PSM retail exemption. The motion will be filed in the coming week with the DC Circuit Court of Appeals. A number of affidavits from several affected agricultural retailers will support the motion. They will document the substantial harm sudden imposition of PSM requirements will have on their operations. A copy of the motion and associated affidavits will be circulated once they have been filed with the court.
House Weighs in on Change to Retail Exemption
Thirty Eight members of the House of Representative, many with a large agricultural retailer presence, weighed in on the OSHA change to the PSM retail exemption on October 22. They requested that OSHA withdraw the change to the retail exemption and, if believed necessary by the agency, solicit comment on a potential change to the exemption through formal notice and comment rulemaking. A copy of the letter is available here. Source: TFI
Mississippi River gets a D+ on infrastructure
America's Watershed Initiative issued a report card assessing the state of infrastructure on the Mississippi River last week. The report gave the Mississippi a D+, citing aging locks and dams, problems with water supply, flood control and flood risk reduction as the factors contributing to the grade. America's Watershed Initiative is a collaboration working with business, government, academic and civic organizations to find solutions for the challenges of managing the Mississippi River and the more than 250 rivers that flow into it. The report card was the first released by the organization formed in 2010, with private and public sector experts in the various issues affecting the river, including commerce, agriculture and ecosystem protection. The deteriorating infrastructure was identified as the biggest problem along the waterway. Source: AgProfessional
House Committee Marks-Up Highway Bill
The House Transportation & Infrastructure Committee marked-up its draft Surface Transportation Reauthorization and Reform Act (STRRA) of 2015 (aka Highway Bill) late last week. The bill is a multi-year reauthorization of highway transportation programs, which would provide certainty for state and local governments to maintain and move forward with transportation projects. It also provides new flexibilities and streamlines environmental review and permitting processes aimed at accelerating projects. The bill also establishes a National Highway Freight Policy, Nationally Significant Freight and Highway Projects Program, and National Multi-modal Freight Network, which are aimed at improving freight movement and strengthening U.S. economic competitiveness. It includes an extension of the deadline for implementing Positive Train Control (PTC), which the American Soybean Association (ASA) strongly supports.
While there are numerous positive aspects of the Committee passed bill, there are several issues important to ASA that are not yet addressed in the bill. Most significantly, the bill does not address the ability for states to allow increased truck weights on federal interstates within their state for trucks with an additional (sixth) axle. Rep. Reid Ribble (R-WI) has indicated his intent to offer an amendment, when the bill reaches the House floor, to include the increased truck weight provisions. The bill could be considered on the House floor the week of Oct. 26 or the week of Nov. 2.
Some other issues impacting farmers that the agricultural community is seeking to address in the STRRA include:
*Exemption to a hazardous materials endorsement for custom harvesters and other operators of similar equipment to enable them to transport the amount of fuel necessary for a single day of field operations with today's agricultural equipment. Currently Class A CDL holders cannot haul more than 118 gallons of diesel fuel without a hazardous materials endorsement.
*Clarify that states may adopt standards on "covered farm vehicles" that are more reasonable to farmers and farm employees operating farm trucks near the farm, without jeopardizing federal transportation funding in those states.
*Hours-of-Service Rule for Livestock and Poultry: removing the 30-minute break after eight hours of service requirement. Permanently removing this rule will avoid unnecessary discomfort for livestock and poultry. Source: AgProfessional
Anhydrous Ammonia Update
In previous editions of the MO-AG minute, we have discussed OSHA's new Process Safety Management (PSM) requirements for facilities that handle anhydrous ammonia. On September 23rd, a Congressional committee held a hearing on the matter. The Senate Homeland Security committee took testimony from OSHA's Mary Beth Maxwell. More information on the hearing can be found HERE.
TFI and ARA sent a letter to the committee expressing the industry's concern (CLICK HERE). Many good points were contained in the letter. One specific point concerned the cost to comply with OSHA's new regulation. The letter states "It will cost agricultural retail facilities tens of millions of dollars to implement. Taken together, the costs imposed by the changes will easily exceed the $100,000,000.00 threshold used by the OMB when determining whether a regulatory action is "major," thereby requiring review." The letter continues stating "Most agricultural retailers estimate it will cost anywhere from $5,000 to $30,000 to either hire contractors or divert internal resources to comply with PSM."
ARA is hosting a webinar on PSM on Tuesday, September 29th at 1pm Central Time. Jeff Wanko, OSHA Safety Engineer, will address PSM requirements and provide an overview of the basic steps retailers must take in order to be in compliance. For more information on the webinar, CLICK HERE.
For several weeks now, MO-AG has been in contact with our Missouri Congressional delegation. We would particularly single out Congresswoman Vicky Hartzler and Senator Roy Blunt and their staff for their efforts to help agribusinesses in this matter. MO-AG will continue to look for ways to bring relief to agribusinesses. If MO-AG members would like more information concerning PSM compliance, please contact MO-AG's Director of Member Services, Jeff Leonard, at the MO-AG office.
In a separate issue also concerning anhydrous ammonia, railroads are threatening to stop transportation of anhydrous ammonia due to a Congressional deadline to implement Positive Train Control (PTC). MO-AG has joined with its state counterparts and national affiliates is asking Congress to extend the deadline for PTC. Railroad have indicated that they will stop carrying anhydrous ammonia after October 31st due to the fact that Congress's PTC deadline has not been met.
Koster Takes Aim
Missouri Attorney General Chris Koster takes aim as MO-AG President, Steve Taylor, handles the controls. Koster participated in MO-AG's Membership Appreciation Sporting Clay event.
Missouri Attorney General Chris Koster has taken aim at the EPA disaster called WOTUS (see story below). Koster has taken aim at EPA's newest disaster, called the EPA 'Clean Power Plan' (see story below). But last week, Koster took aim at much less treacherous adversaries . . . he took aim at sporting clays.
Koster joined MO-AG members at the membership apperception event that took place on October 7th near Boonville, MO. Members had a beautiful Missouri fall day to enjoy their choice of either golf or sporting clays. After the event, a BBQ and reception was held with Koster as the guest of honor. During the reception, Koster, who is currently unopposed for the democratic nomination for Governor, told MO-AG members that agriculture should be a top priority and provided specific examples of how he would make that happen.
Lawsuits against EPA's WOTUS (Waters of the U.S.) have been filed throughout the country in district courts and in courts of appeals. Missouri Attorney General Chris Koster filed, along with 13 other states, in the district court of North Dakota and that court issued an injunction that stays the rule in the 13 States. Currently a judicial panel is deciding if the district court cases should be consolidated in DC or kept as separate cases in multiple courts around the U.S. Also, all of the court of appeals cases have been consolidated in the Sixth Circuit, in Cincinnati. That Sixth Circuit Court has issued a stay nationwide which means EPA's implementation of the WOTUS rule is paused pending further legal review. Absent an appeal by EPA, it is expected that EPA will issue a notice indicating that for now the old rules defining WOTUS are in effect nationwide.
But is the stay all good news? Some see the stay as a two-edged sword. First, the Court did not actually decide whether it has jurisdiction of the case. If the Court ultimately decides that it doesn't have jurisdiction, as some opponents of WOTUS are wanting, then it would seem that its nationwide stay would be dissolved. If, on the other hand, EPA wins on jurisdiction, and the Court keeps the case, then the stay remains in effect.
In deciding to issue the stay, the Court did express serious doubt as to whether EPA acted legally in issuing the WOTUS rule. The Court was particularly concerned about the distance-based limitations in the rule, indicating doubt as to whether those aspects of the rule had sufficient scientific support, and questioning whether EPA had followed required procedures in including those limitations in the final rule, when they had not been present in the proposed rule that was issued for comment. Based on those concerns, the Court held that the State and non-State challengers "have met their burden of showing a substantial probability of success on the merits."
MO-AG again thanks Attorney General Chris Koster for his leadership on this issue.
Rail Shutdown Looming
MO-AG joined with many of its state counterparts and national affiliates in signing onto two separate letters asking Congress for action in order to avoid a shut-down of the nation's rail system. In a letter to all members, the agricultural groups asks Congress to "enact legislation that would extend the current Dec. 31, 2015 deadline by which Class I rail carriers are to develop, test and implement Positive Train Control (PTC) on their rail networks." The letter states that the agricultural groups "are deeply concerned that failure to extend the current deadline for installation and implementation of PTC technology may well have disruptive ripple effects on the rail transportation network as a whole, resulting in severe service disruptions and inefficiencies in moving a projected near-record harvest during the peak fall shipping season." To view this letter, CLICK HERE.
MO-AG also joined with other groups on a separate letter to the House Committee on Transportation and Infrastructure. This letter describes how "a service stoppage would also force fertilizer manufacturers to curtail or cease production. Manufacturers have only limited storage capacity at their facilities, and therefore must ship anhydrous ammonia and other products year-round to continue production and work within the capacity constraints of the transportation network. Without access to rail transportation, on-site storage would quickly reach capacity." To view this letter, CLICK HERE
Some feel that any legislation moving forward will most likely be a combination of H.R. 3651 and the Senate-passed PTC language that was included in the Senate's Highway bill. However, with issues ranging to election of a Speaker of the House, & House leadership to increasing the debt limit and funding the government all on the agenda now, it is hard for Congress to focus on moving legislation. Stay tuned to MO-AG for updates.
Update on PSM & Anhydrous Ammonia
As stated in previous MO-AG minutes, OSHA's decision to require Process Safety Management (PSM) for facilities that handle anhydrous ammonia will have a major impact on those facilities. To prepare for PSM, MO-AG has suggested members avail themselves to information from Asmark (CLICK HERE). Asmark is launching the new MyPSM+RMP Suite of Guidance Materials as well as launching "MyPSM+RMP Workshops: A to Z." MO-AG will be providing more information on Asmark activities soon.
The Agricultural Retailers Association (ARA) recently hosted a webinar on PSM. The webinar was led by OSHA Safety Engineer Jeff Wanko. Wanko joined OSHA in 2011 and is now in OSHA's Directorate of Enforcement in Washington, D.C. In the webinar, Wanko provided an overview of the basic steps retailers must take in order to be in compliance. Wanko will also be participating in the ARA Convention (CLICK HERE) Below is the OSHA PSM process encapsulated in one slide from the webinar.
The slide shows 'The Process' (PSM) is at the center of all the activity. For a complete copy of the slideshow, CLICK HERE. To see a copy of the Q&As after the webinar, CLICK HERE.
Mr. Wanko suggested ag retailers utilize the OSHA Compliance Assistance Program. In Missouri, that program is ran through the Missouri Dept of Labor & Industrial Relations (MDLIR). The MDLIR website can be found HERE or by phone at 573-751-3721.
Koster Sues EPA . . . again
Missouri will join more than 20 other states in suing the EPA for exceeding its authority in issuing new regulations, collectively known as the "Clean Power Plan," that set strict limits on carbon emissions for each state. In a speech at the Missouri Electric Coop's annual meeting in Branson, Attorney General Chris Koster explained that he supports Missouri's ongoing efforts to produce energy more cleanly and efficiently, but that EPA's plan sets a compliance schedule that is economically risky and robs Missouri of its competitive advantage in low consumer and industrial electrical rates. "Cleaner energy production is an important goal," Koster said, "and one Missouri's energy producers are already working toward." Koster observed that over the past decade Missouri utilities have added more than 2,200 megawatts of generating capacity from wind power and other renewable resources.
Despite this progress, Koster noted that Missouri's energy producers estimate that complying with EPA's deadlines would cost the state more than $ 6 billion. He argued that Missouri is better off maintaining the competitive advantage it enjoys through low-energy costs while continuing to develop low- and zero-emission sources of energy on a more reasonable timeline. "Renewable energy is a vital piece of our state's energy portfolio," Koster said. "It is essential, however, that we achieve this goal in an economically responsible way that makes sense for Missouri."
Koster also emphasized that Missouri's recent history with EPA justifies skepticism when EPA creates sweeping regulatory schemes imposing new obligations on Missouri residents and businesses. During Koster's tenure as Attorney General, Missouri successfully challenged new EPA regulations regarding mercury emissions and water rules, arguing in each case that EPA unlawfully encroached on Missouri's sovereign authority to regulate its air and water. "I will continue to fight against federal overreach and to keep Missouri strong," Koster concluded. Source: Missouri Attorney General's Office
Munzlinger Praises MO-AG Scholarships
State Sen. Brian Munzlinger (R-Williamstown) said a scholarship opportunity has been made possible for current college students in Missouri. The Missouri Agribusiness Association (MO-AG) will award three scholarships later this year. The deadline to apply is Oct. 9. "This is a golden opportunity for any of our college students who are either pursuing or are interested in pursuing degrees relating to agriculture," Munzlinger said. "The people at MO-AG do good work, and they have been offering these scholarships for more than 30 years. Agriculture is the backbone of our state's economy, and our young people who will carry and pass that torch onto future generations deserve our support."
MO-AG will award these three Jim Russell Foundation scholarships, each worth $1,500, in December. The foundation was first established in 1983. In 2008, the foundation was renamed to honor Jim Russell, a long-time supporter and leader of MO-AG.
"I want to thank MO-AG for offering these scholarships once again this year," Sen. Munzlinger said. "Farming is Missouri's No. 1 industry, and we have been seeing too many people leave this business over the years. This is a great opportunity to keep not only existing farmers working, but a great way to have a new generation of people ready to enter into farming and keep the industry alive for decades to come."
Source: Sen. Brian Munzlinger
Grain & Feed Facilities - Comply with Food Safety Modernization Act (FSMA)
The National Grain and Feed Association (NGFA) has published a summary of the major impacts to the grain elevator, grain processing, and animal feed industries from FDA's final regulations issued under the Food Safety Modernization Act (FSMA). The complete summary can be found here (CLICK HERE). The summary discusses new requirements the industry must meet regarding current good manufacturing practices (CGMPs), hazard analysis & risk-based controls, employee training, and record-keeping requirements. Some specific requirements in the rule includes the requirement to have a "preventive controls qualified individual" to develop and implement a written animal feed safety plan for the facility. The rule requires written animal feed safety plan that includes hazard analysis, preventive controls, product recall plan, and preventive controls. An animal feed facility has to have a risk-based supply-chain program for those raw materials or other ingredients for which the facility has identified as a hazard requiring a preventive control that will be controlled by the supplier of the raw material or ingredient. Again, these are just but a few examples.
The NGFA is also partnering with Grain Journal to provide a free webinar regarding FSMA. The webinar will be held on Monday, Oct 5, 2015 from 2:00 - 3:00 PM central time. For more information on the webinar, CLICK HERE.
Dates for compliance with these new regulations range from September 2016 - September 2019, depending upon the size of the business MO-AG encourages members impacted by these regulations to not wait but become educated now and begin to plan and implement the changes required for your particular business to become compliant. If MO-AG members would like more information concerning FSMA, please contact MO-AG's Director of Member Services, Jeff Leonard, at the MO-AG office.
MO-AG Member Visit - CVR Energy
MO-AG President Steve Taylor joined with his counterpart, Kansas Agribusiness Retailers Association President and CEO Tom Tunnell, along with TFI -DC staff Andy O'Hare, Wade Foster, and Justin Louchheim, and others at the CVR facility in Coffeyville, Kansas. The facility includes a refinery which produces petroleum products as well as a nitrogen manufacturing plant which produces UAN and AA. The purpose of the visit was to tour the plant and discuss issues important to all which ranged from transportation concerns to the latest regulations out of OSHA. Taylor stated "It was a very impressive plant and I greatly appreciated the tour and conversations. I'm very grateful to my friend Gina Bowman and Bill White of CVR for taking the time and for opening up their facilities to us."
Agriculture Bubble Bursting ?
We're at the beginning of a multiyear retrenchment (collapse in prices) in the agriculture sector. The latest USDA Economic Research Service Farm Income and Finances Report issued on August 25th has spooked a lot of agriculture industry analysts. I have been making this point for some time; prices of everything from corn, soybeans, wheat, hay, cotton, poultry, pork, beef, farm equipment...and land values will all revert to their long term mean price levels. According to the USDA report, net farm income is dropping dramatically. Net cash income is expected to fall by 21 percent in 2015, while the forecast 36-percent drop in net farm income would be the largest since 1983 (in both nominal and inflation-adjusted terms). Crop receipts are expected to decrease by over 6 percent ($12.9 billion) in 2015, led by a forecast $7.1-billion decline in corn receipts and a $3.4-billion drop in soybean receipts. Declining assets resulting from a modest decline in farmland values and higher debt are forecast to create a 4.8-percent decline in equity, the first drop since 2009. After several years of steady improvement, farm financial risk indicators such as the debt-to-asset ratio are expected to rise in 2015, indicating increasing financial pressure on the sector. However, debt-to-asset and debt-to-equity ratios remain low relative to historical levels. Source: Thomas Landstreet, Forbes Magazine
District Judge Ralph Erickson has issued his ruling as to whether the injunction he issued against EPA's Water of the United States (WOTUS) applies nationwide. Judge Erickson ruled that the injunction will only apply to Missouri and the other states that filed suit in his court. In his ruling, Judge Erickson stated "While a district court may exercise its discretion to extend injunctive power beyond the parties to the case, nothing requires the court to do so. Four courts have denied preliminary injunctions in cases on the issue before the court. Two courts denied preliminary injunctions because they found they lacked subject matter jurisdiction. The remaining two courts deferred their decision until the Judicial Panel for Multidistrict Litigation which decides on consolidation of the district court cases. There are compelling reasons in favor of both extension of the injunction and limitation of the injunction Under these circumstances, the court declines to extend its decision beyond the entities that are actually parties in this litigation."
So, the chaos that is WOTUS takes another twist. EPA and the Corps will attempt to implement WOTUS in all states other than Missouri and 12 other states. Several groups have sent letters to EPA and the Corps asking that they suspend the rule nationwide until the lawsuits have been decided. The National Association of State Departments of Agriculture (NASDA) has request postponement. NASDA represents the Commissioners, Secretaries and Directors of the state departments of agriculture in all fifty states. NASDA has requested that EPA postpone implementation of the new rule until state regulators, EPA and Corps field staff are sufficiently educated and trained, and that outreach has been conducted for agency field staff, state regulators and the regulated community.
PSM: Special Report Available for Ag Retailers
Process safety management (PSM) has been a popular topic since OSHA's announcement on July 22nd rescinding the retail exemption. Work is currently underway to build the tools necessary to help retailers comply with PSM and upgrade their Risk Management Programs from Level 2 to Level 3. The tools are set to launch by October 15th. In the meantime, we have prepared a new Special Report on the subject that we believe you will find beneficial. We recommend you print off a copy of Process Safety Management (PSM) for Ag Retailers for yourself and the personnel responsible for your ammonia installation and RMP. Click here for the special report. Source: Asmark Institute
TFI-Process Safety Management and RMP Level 3 FAQs
Please click here to see the FAQs.
Focus on Water
MO-AG President Steve Taylor teamed up with his counterparts from Iowa and Illinois to participate in the 'Midwest Water Issues Forum" held recently by ARA in Ft. Madison, Iowa. Issues discussed included the lawsuit filed by the city of Des Moines against agriculture for high levels of nutrients in the city's water supply. The Illinois nutrient loss reduction strategy was also amongst the topics of conversation. Taylor reviewed Missouri's nutrient loss reduction strategy and nutrient criteria being proposed for rulemaking by MDNR.
Taylor also discussed EPA's Waters of the United States (WOTUS) rule. Taylor reminded the crowd of the broad opposition to the WOTUS rule that tremendously and illegally expands federal jurisdiction over agricultural land. WOTUS will mean more regulations on agriculture and agribusinesses, force changes in land use, and increase permits. Taylor highlighted explosive, previously secret, memos from the Corps of Engineers that cast major doubts on the scientific and legal validity of the WOTUS rule. Taylor stated, "Before the Corps memos, the chances of getting veto proof legislation through Congress was thought not to be very high. With these Corps memos now seeing the light of day, I hope more members of Congress will see there is no scientific or legal basis for the WOTUS rule and pass legislation that will tell EPA to start over, and this time, work with States and agriculture, and do it right this time"
The Corps memos summarizes very substantial concerns that the Corps had with EPA's final draft of the rule and concerns the Corps expressed with the ability to implement the rule. Because of this and the failure to conduct an Environmental Impact Statement (EIS), the Corps concludes that the WOTUS rule will "not likely to survive judicial review in federal courts." Taylor did note how the Corps concerns were due to the fact that the Corps fears losing jurisdiction over some waters. This is actually a fear repeated by some environmental groups. It seems the EPA's arbitrary and capricious WOTUS rule cuts both ways.
Missouri Attorney General Chris Koster and many others have filed lawsuits to stop WOTUS.
Comment on DOL Salary Rule
The Fair Labor Standards Act (FLSA or Act) guarantees a minimum wage and overtime pay at a rate of not less than one and one-half times the employee's regular rate for hours worked over 40 in a workweek. While these protections extend to most workers, the FLSA does provide a number of exemptions. With this rulemaking, DOL is updating the section 13(a)(1) exemption's salary requirements. The Department has updated the salary level requirements seven times since 1938, most recently in 2004. Under the current regulations, an executive, administrative, or professional employee must be paid at least $455 per week ($23,660 per year for a full-year worker). The Department proposes to raise standard salary level for full-time salaried workers to $921 per week, or $47,892 annually for a full-year worker.
MO-AG encourages members to become more informed and consider commenting on the rule by going to http://1.usa.gov/1Mt0tU9 To review MO-AG's comment letter, CLICK HERE.
A federal appeals court granted a major victory to Dow AgroSciences when it ruled that the company could continue to sell its new herbicide, Enlist Duo, while a legal challenge works its way through the courts. The Ninth Circuit denied the request of environmental groups challenging the EPA's approval of Enlist Duo. The groups had asked the court to block the sale of the weed killer while their case was being heard. Garry Hamlin, a Dow spokesman, stated "Enlist Duo remains registered and continues to be available for sale and use." In addition to denying the plaintiffs' request for a stay, the court also placed the case on an expedited schedule. Briefing will take place in September and October, which means the judges could eventually issue a final ruling on the merits sometime early next year. Aaron Colangelo, an attorney on the case with the Natural Resources Defense Council, stated "That's what we're hoping for," he said. "We'd like a decision quickly." Colangelo said the plaintiffs will flesh out their arguments against Enlist Duo in more detail in their upcoming briefs. But he said their case will be centered on two claims: that the glyphosate in the herbicide is a probable carcinogen and that it is harmful to the habitat of the monarch butterfly. Source: BNA
GMOs Not 'Clean and Green'
Scotland's intends to ban the growing of genetically modified (GM) crops on its territory to protect its "clean and green brand". Widely grown in the Americas and Asia, GM crops have divided opinion in Europe, with some green groups saying they are worried about their environmental impact. Richard Lochhead, the Scottish government's minister for the environment, food and rural affairs, said he planned to take advantage of new European Union rules allowing countries to opt out of growing EU-authorized GM crops.
"Scotland is known around the world for our beautiful natural environment - and banning growing genetically modified crops will protect and further enhance our clean, green status," Lochhead said in a statement. "There is no evidence of significant demand for GM products by Scottish consumers and I am concerned that allowing GM crops to be grown in Scotland would damage our clean and green brand, thereby gambling with the future of our 14 billion-pound ($22 billion) food and drink sector." Source: BIO
OSHA Rescinds the "Retailer Exemption"
Process safety management (PSM) has been a popular topic these last few days, especially since OSHA's announcement on July 22nd rescinding the retail exemption. Bypassing the rulemaking process, which involves the opportunity for public comments, OSHA changed the rules. PSM first hit mainstream radar back around 2000 when OSHA interpreted a retail facility to be one that derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user, otherwise known as "the 50 percent test." For most ammonia facilities this was welcome relief at the time from a rule originally developed for manufacturing facilities. PSM popped back up on the radar screen as a result of the West Fertilizer explosion and the President's August 1, 2013, Executive Order 13650, Improving Chemical Facility Safety and Security. "There's an old saying that if you think safety is expensive, try an accident. Accidents cost a lot of money. And, not only in damage to plant and in claims for injury, but also in the loss of the company's reputation." -Dr. Trevor Kletz, recognized as the father of process safety. Don't wait for an accident to happen at your facility, register with ResponsibleAg and proactively work to comply with the Federal rules, many of which have been in place since the 70's.
Most agricultural retailers are classified under NAICS code 424910, which is defined as "Farm Supplies Merchant Wholesale," formerly SIC code 5191. As a result of OSHA rescinding the retail exemption, agricultural retailers that store and handle a "highly hazardous chemical" such as anhydrous ammonia would be subject to the requirements of PSM.
OSHA has issued an enforcement policy offering to provide compliance assistance to affected facilities and delay enforcement for six months or until January 22, 2016. Industry partners are sorting through the effect this will have on our industry and are weighing their options on how best to respond to OSHA. For now, here is what we know:
What products are involved? Anhydrous ammonia, aqua ammonia, nitric acid among others are on the listof regulated chemicals. We are awaiting word as to what degree propane will be affected.
What's the big deal? Loss of the retail exemption means the typical anhydrous ammonia facility must now comply with OSHA's PSM Standard. And, because the facility is now subject to PSM, it triggers EPA's requirement to prepare and submit a Program 3 Risk Management Plan.
What's the difference between a Program 2 and 3 RMP? In a word - LOTS!
Flow drawings, Process & Instrumentation Diagrams (P&ID), Management of Change
program to mention a few, plus stepped-up requirements within Process Hazard Analysis,Compliance Audit and Mechanical Integrity. An engineer will not be required for the typical retail facility but some do seek out their help.
Will this require me to upgrade my equipment? Probably, some degree of upgrades will be required at almost every facility based on coming into compliance with PSM and based on the recent RAGAGEP memo. OSHA's memorandum provides guidance on the enforcement of PSM's recognized and generally accepted good engineering practices (RAGAGEP) requirements, including how to interpret "shall" and "should" language in published codes, standards, published technical reports, recommended practices (RP) or similar documents.
What's the Asmark Institute's plan of action? While industry is contemplating their options, we have already proceeded to upgrade our tools and systematic approach to help our clients meet the January 2016 deadline. We will launch the new suite of tools by October 15th and incorporate the additional PSM and RMP Program 3 upgrade into our annual compliance visit process that occurs between October 15th and December 31st of each year. We worked with EPA two years ago to build the Program 3 RMP materials, so luckily that is behind us. These new requirements will be added to the Lighthouse program and covered under the retainer much as we have with new rules in the past.
Can this be done within 6 months? We were given 3 years by EPA to prepare the first RMP. PSM is substantially bigger, will have to be made to "fit" our small facilities with only a few people and completely new to everyone in the retail industry. Becoming compliant in a quality manner with a reasonable understanding will take much longer than six months.
Are there any other regulatory requirements on the horizon? We anticipate EPA will also respond to the President's Executive Order soon with a few new hurdles of their own, such as adding ammonium nitrate and propane to the list of RMP regulated substances and possibly adding requirements to the RMP for new data elements and accident prevention features.
What can I do to be prepared? Read everything available on Process Safety Management and learn all you can in the next month. PSM is not like a SARA Tier II Report that once a year a document is updated and placed in a file. At some facilities, expect there to be an activity that must be performed and documented on a daily basis.
Are you responsible for more than one facility? The Asmark Institute contracted for professional training for our own staff that will help handle PSM. We offered to share this with our clients and ultimately wound up contracting for a number of two-day training courses. Click here if you are interested in attending one of these courses. Space is extremely limited.
Best advice? Start now! This will be unlike any rule, regulation or standard we have come to know. The effects won't be known until the OSHA inspector visits. Agricultural retailers have operated in a safe and sound manner for several decades and have voluntarily initiated proactive programs such as ResponsibleAg to assist fertilizer retailers achieve and maintain compliance with federal regulations. OSHA's action on July 22nd blindsided the recently formed ag-alliance group and the entire industry. While we can't predict how this will turn out, we do know that we must get started in order to have any hope whatsoever of making the January deadline. We recommend our clients do the same. Stay tuned for more information as it becomes available. Source: Asmark Institute
States Sue EPA over WOTUS
Attorneys general from thirteen states filed a lawsuit Monday challenging EPA's new rule defining the waters of the U.S. (WOTUS), asserting that the rule expands the scope of clean water regulations to lands that are dry much of the year and increases the federal government's authority over land use. The case was filed in the U.S. District Court for the District of North Dakota. The states assert that the EPA's rule inappropriately broadens federal authority by placing a majority of water and land resources management in the hands of the federal government.
Missouri Attorney General Chris Koster joined in the lawsuit. "If this change becomes law, thousands of acres of privately owned land in Missouri will suddenly be subject to federal water regulation," he said in a statement. "Missouri farmers will be particularly harmed by the federal government's restrictions on how their land can be used." As an example, Koster said the rule defines tributaries to include ponds, streams that flow only briefly during or after rainstorms, and channels that are usually dry. The definition extends to lands within a 100-year floodplain -- even if they are dry 99 out of 100 years, he said. The lawsuit seeks an order declaring the rule is unlawful and prohibiting the agencies from implementing it. Without such an order, the rule takes effect within 60 days.
Blake Hurst, president of the Missouri Farm Bureau, praised Koster for challenging the rule. "If this rule stands, landowners will be subject to onerous permitting requirements and land use restrictions," Hurst said in a release. Steve Taylor, president of the Missouri Agribusiness Association, said the group strongly supports the lawsuit. "The EPA's rule ignores the critical concerns of Missouri agribusiness," he said. In response, EPA stated "In order to clearly protect the streams and wetlands that form the foundation of the nation's water resources, the agencies developed a rule that ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand. One in three people get drinking water from streams that lacked clear protection before the Clean Water Rule." Source: Agri-Pulse
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