Fertilizer Issues

PSM Court Decision

The DC Circuit issued its long awaited decision (below) addressing the legal challenge TFI and ARA undertook last year in opposition to the removal of the exemption from the process safety management (PSM) standard for ag retailers. As you recall, OSHA issued a memorandum in July 2015 effectively nullifying the long standing exemption from the PSM standard for ag retailers, which had been in place for many years. TFI and ARA cried foul and challenged the policy change as being an illegal rulemaking that should have been considered only through a notice and comment process.

The court agreed. The decision was unanimous. The opinion states: “According to petitioners (TFI and ARA) the OSH Act required the agency to adhere to notice and comment procedures in promulgating its new definition. We agree with petitioners.” In conclusion, the court states: “…we grant the petitions for the review and vacate OSHA’s Memorandum for failure to abide by OSH Act procedural requirements.” I don’t believe they could have been clearer. This decision may impact future efforts by OSHA to make policy changes through guidance.

OSHA does have the opportunity to ask the three judge panel to reconsider its decision and also ask the full DC Circuit (“en banc” review) to reconsider the decision. Either request would need to be made in the next 45 days. Both are not very likely, considering the unanimous decision. Moreover, OSHA may be able to save face by claiming that they have already initiated a rule to update the PSM program and may consider the applicability of PSM to ag retailers in that proceeding.

PSM DC Circuit Court Decision

ARA Letter about OSHA to Congress
Read the Letter

Sulfur Dust Explosions in Fertilizer Retail Facilities
TFI/ARA Sulfur Dust Memo
OSHA Combustible Dust
IPNI Sulfur Memo

TFI Requests Phase-In Extension from OSHA on PSM Requirements for Retailers
On September 8th The Fertilizer Institute wrote to OSHA to request an extension and phase-in of the implementation of the Process Safety Management (PSM) regulations that will now apply to agricultural retail facilities due to OSHA’s July 22, 2015 memo that changed the definition of the “retail exemption.” They requested the extension and phase-in of compliance for newly covered facilities to comply with PSM be three years. TFI and MCPR believe that a three year extension is necessary for retailers to understand, make any necessary upgrades, and fully implement PSM at their facilities.
You can read the entire letter here.
PSM Requirements
Process Safety Management (PSM) for Ag Retailers Document from Asmark Institute

The Fertilizer Institute (TFI) has prepared the “Frequently Asked Questions” (FAQ) document about Process Safety Management (PSM) and the Risk Management Plan Program 3 (RMP 3). This FAQ is designed to help agricultural retailers begin to understand the effects of the Occupational Safety and Health Administration’s (OSHA) recent policy change regarding what facilities qualify for the retail exemption under PSM. Besides general lack of knowledge about the requirements of PSM, TFI has also heard several questions about specific compliance issues, including onsite propane tanks, federal design and maintenance standards, and facilities ability to avoid compliance through switching to an agricultural operations NAICS code.

This document is not exhaustive, but we hope it helps agricultural retailers begin to understand PSM and RMP 3. While we are providing this document to assist with compliance, we also understand that the six month compliance period provided by OSHA is not nearly enough time for agricultural retailers to meet their compliance obligations for PSM and RMP 3. We have joined the Agricultural Retailers Association in requesting more compliance time from OSHA (see above). In the letter we request an additional three years of compliance time.

TFI FAQ Document on PSM and Program 3 RMP

The Agricultural Fertilizer Research and Education Council (AFREC)
Read a legislative report which summarizes AFREC’s history and many of the great achievements made by this organization researching, educating, and promoting fertility use in modern Minnesota agriculture.

Agricultural Fertilizer Research & Education Council (AFREC)
In 2007, the Minnesota Legislature established the Minnesota Agricultural Fertilizer Research and Education Program for the purpose of directing fertilizer research and outreach programs. The enabling legislation establishing the governing Agricultural Fertilizer Research and Education Council (AFREC) is Minnesota Statutes 18C.70 and 18C.71. The Minnesota Legislature established the funding mechanisms by raising the Minnesota Department of Agriculture’s (MDA) fertilizer tonnage fees from 30 cents/ton to 70 cents/ton starting July 1, 2009. Each year MDA announces a Request for Proposals (RFP) for projects using funds ($800,000, the upper annual limit set by the legislature) generated by fertilizer sales.
Visit the AFREC webpage for more information.

Minnesota Pollution Control Agency Expects to Develop A Minnesota Specific Aquatic Life Nitrate Toxicity Standard by 2015

Information in Response to the Texas Facility Incident from The Fertilizer Institute (TFI).
The Fertilizer Institute Fact Sheet

4R Nutrient Stewardship

4R Summary

View an article from the New York Times showcasing the benefits of fertilizer.
MCPR is pleased because the article reveals the vital role that fertilizer plays in improving and sustaining the world’s food supply. In addition, the article points to commercial fertilizers as one of the most effective solutions in solving the current global food crisis. Congratulations to TFI who had a significant role informing the authors of the facts.

Liquid Bulk Fertilizer Storage Issue
MCPR members may have questions about recent legislative changes related to customers storing on their farm liquid bulk fertilizer. MCPR is providing this statement that will give guidance reflecting the recently passed legislation and may suffice until the MDA provides us with a guidance document with more details. “The 2007 legislature amended “Sec. 28. Minnesota Statutes 2006, section 18C.305, by adding a subdivision to read: Subd. 3. Exemption. A permit and safeguard is not required for agricultural commodity producers who store, on their own property, for their own use, no more than 6,000 gallons of liquid commercial fertilizer.” Therefore, MCPR members should understand that a permit is not required and bulk fertilizer containment rules do not apply to agricultural commodity producers who store on their own property for their own use no more than 6,000 gallons of liquid commercial fertilizer. As always, use discretion related to the storage containers you fill.

Sample letter to members regarding on farm dry fertilizer storage.

Memo to distributors and wholesalers related to on farm dry fertilizer storage.

MDA fertilizer/pesticide bulk storage permitting requirements
Download the MDA fertilizer/pesticide bulk storage permitting requirements.
Wholesalers/distributors can be liable for illegal storage and possible environmental damage for on farm bulk fertilizer storage. For further information on your possible liability please contact the MDA by calling (651) 201-6472 .

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