Ag retailers get win in OSHA ruling

OSHA must adhere to comment period before forcing fertilizer storage limits.

The U.S. Court of Appeals for the D.C. circuit ruled in favor of production agriculture by finding that the Occupational Safety & Health Administration (OSHA) violated the law when it issued new standards for anhydrous ammonia storage. Anhydrous ammonia is an important fertilizer used by agricultural producers across the country.

On July 22, 2015, OSHA issued new standards to restrict farmers’ abilities to access critical tools, like anhydrous ammonia, that are necessary for them to feed the world. OSHA’s policy would have required facilities that store or transport 10,000 lb. or more of anhydrous ammonia to obtain Process Safety Management Standard (PSM) documentation. If the facility is unable to obtain this documentation, it would be forced to purchase new storage tanks, costing $70,000 or more.

The judge vacated OSHA’s memorandum for failure to abide by procedural requirements of the Occupational Safety & Health Act. When promulgating or modifying a “standard,” OSHA must adhere to notice-and-comment procedures set forth in the act. “OSHA concedes that, when it promulgated its memorandum redefining ‘retail facility,’ it did not satisfy the procedural requirements for standards,” the court document stated.

On July 14, 2016, Sen. Deb Fischer (R., Neb.) joined Sen. Heidi Heitkamp (D., N.D.) to introduce bipartisan legislation, known as the FARM Act, that would stop OSHA’s harmful federal standards. A statement from Fischer’s office said the decision by the U.S. Court of Appeals reinforced the provisions in the FARM Act.

“Today’s ruling by the federal court reinforces the provisions in our bill and sets an important precedent for other harmful regulations. Now, our ag producers will face one less hardship so they can focus on feeding the world and providing for their families,” Fischer said.

The new standards were announced in July 2015 and became effective immediately. Agricultural retailers are exempt from the PSM Standard until OSHA completes a notice-and-comment rule-making process regarding PSM, which could take several years to finalize. The Agricultural Retailers Assn. (ARA) is currently reviewing the court's decision and said it will provide additional analysis once its assessment is completed.

For now, retailers can celebrate a victory on the legal front. "It's a big win. Given the significant economic costs and absence of any safety benefit, the court made the correct decision," ARA chairman Harold Cooper said. "The retail exemption has been in place for more than 20 years, and OSHA should not have redefined it without an opportunity for stakeholders to comment."

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