U.S. Senator Heidi Heitkamp today announced that fertilizer retailers in North Dakota and across the country will not have to comply with harmful standards issued last year by the Administration. The standards – which the Occupational Safety and Health Administration (OSHA) must withdraw – would have applied tough, across-the-board restrictions on agricultural retailers that sell anhydrous ammonia, a common fertilizer, seriously burdening retailers and farmers.
In a decision issued this morning, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the administration should have gone through a formal rulemaking process, seeking more meaningful input from farmers and fertilizer retailers. The Administration created the new standards in a July 2015 memorandum, and they became effective immediately. However, because of language Heitkamp helped include in the end-of-the-year spending bill Congress passed last December, OSHA postponed enforcement of the guidance until October 1, 2016.
“As I said yesterday at a hearing I helped lead, the administration should have listened to farmers, retailers, and rural communities before creating these standards – and today the courts agreed,” said Heitkamp. “This is a victory for rural communities whose economies rely on farmers’ accessing inputs like anhydrous ammonia fertilizer. Complying with those standards could have cost each facility up to $50,000, according to the North Dakota Department of Agriculture. More than 30 North Dakota retailers said they would have had to stop selling the fertilizer. With those huge impacts on our farmers, it was clear all along that there should have been a formal rulemaking process rather than just agency guidance with little input from those impacted.”
Just yesterday, Heitkamp pushed key administration officials for a solution on the standards, pointing out – as the court said in its decision today – that the proposed standards looked more like rulemaking than guidance. Heitkamp called on the administration to voluntarily delay enforcing the standards given the impact they would have on farmers and retailers. The new policy would have required facilities that store or transport 10,000 pounds or more of anhydrous ammonia to obtain Process Safety Management Standard documentation. If the facility could not obtain this documentation, it would have been forced to purchase new storage tanks, costing $70,000 or more.
OSHA did not choose the traditional notice-and-comment rulemaking process, which would have given retailers and farmers an opportunity for more meaningful consultation as the rule was developed, and instead issued interpretive guidance, which did not include substantial input from affected industries.
In July, Heitkamp and Sen. Deb Fischer (R-NE) introduced bipartisan legislation to stop these harmful federal standards from going into effect. It would also require the agency to abide by a formal rulemaking process when instituting a similar policy change in the future. Click here to view text of the FARM Act.