Nebraskans cheer court rolling back OSHA fertilizer regulations
NICHOLAS BERGIN Lincoln Journal Star
Updated Sep 23, 2016
Nebraska farm leaders hailed a Friday ruling from D.C. Circuit Court of Appeals that rejected efforts by the Occupational Safety and Health Administration to apply stricter handling rules to retailers of anhydrous ammonia without first going through a formal rule-making process.
Nebraska Farm Bureau President Steve Nelson called it a “mark on the win column for Nebraska farmers and fertilizer suppliers.”
“Nebraska Farm Bureau and others have challenged the flawed logic OSHA used to justify additional regulations on fertilizer suppliers which ultimately would drive up fertilizer costs for Nebraska farmers and could possibly limit access to anhydrous ammonia fertilizer product,” Nelson said in a news release.
OSHA began to tighten anhydrous ammonia handling requirements for retail facilities that were exempt following an April 2013 explosion of 40 to 60 tons of fertilizer at a plant in West Texas. Caused by a fire, the explosion killed 15 people, injured 160 and damaged or destroyed 160 buildings.
“While anhydrous ammonia was present at the facility, its presence was not a contributing factor to the explosion and investigators later found the explosion was the result of an intentional criminal act,” Nelson said.
Before OSHA began changing the rules in 2015, retailers that earned half their income from selling to end users got an exemption from requirements known as the Process Safety Management Standard.
When OSHA dropped the retail sales exemption, it didn’t first request public comment, which the Agricultural Retailers Association and the Fertilizer Institute used as a lever for their lawsuit seeking to roll back the regulations.
The ruling Friday orders OSHA to reinstate the exemption for retailers because the federal agency failed to provide notice and offer comment periods as required by law. Experts say going through the rule making process could take years.
“This administration has broadly and unjustly avoided proper procedure to construct and reinterpret myriad federal regulations without public input,” Daren Coppock, president and chief executive officer of the Agricultural Retailers Association, said in a news release.
“The court’s decision in this case affirms the importance of regulatory agencies following proper notice and comment rulemaking procedure.”
Nebraska Sen. Deb Fischer teamed up with Sen. Heidi Heitkamp of North Dakota earlier this year to introduce bipartisan legislation known as the FARM Act in an attempt to stop OSHA’s implementation of the standards.
Fischer said Friday's ruling affirmed her efforts.
“We came together to provide some relief for ag producers and force the administration to follow the law," she said in a statement. "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.”
Sen. Ben Sasse, a member of the Senate Agriculture Committee, said: “Nebraska farmers and ranchers didn’t elect any of the bureaucrats at OSHA. That’s why this ruling is an encouraging step to restore common sense and the separation of powers.”