Waters of the US Proposed EPA Rule – Status Update March 24, 2014
The Environmental Protection Agency’s proposed rule on Waters of the U.S. further defines “jurisdictional waters” under the Clean Water Act. As drafted, the proposed regulation could greatly expand the EPA’s jurisdiction of over ditches, ephemeral streams, and other water bodies – even water bodies that are dry most of the time. By expanding EPA’s jurisdiction over these additional waters, the proposed rule would cause additional farming activities to require permits and regulatory oversight by the EPA.
EPA Administrator Gina McCarthy has stated that the proposed Waters of the U.S. rule will be sent to the Office of Management and Budget this spring for final approval. The Administration intends to then issue the final regulation without further allowing time for further public comment, even though the EPA has received over one million public comments on the proposed rule. It is concerning that the EPA intends to allow the final rule to become effective without additional time to review the latest changes.
Since being issued last year, this regulatory proposal has faced opposition from agriculture, business, and state and local government due to the lack of clarity provided by the U.S. Army Corps of Engineers and the EPA. Additionally, many agricultural groups - including the Kansas Grain and Feed Association, Kansas Agribusiness Retailers Association, and the Kansas Association of Ethanol Processors – have called on EPA to withdraw the proposal and start over.
BNSF Plans $103 Million Capital Program in Kansas to Maintain and Expand Rail Capacity and Ensure Safe, Reliable Operations
March 3, 2015
BNSF Railway Company (BNSF) announced that its 2015 capital program for its operations in Kansas will be an estimated $103 million for rail maintenance and capacity improvement projects. Unlike other modes of freight transportation, U.S. railroads own and maintain their own networks. To ensure BNSF’s network operates at optimal efficiency, each year the company allocates capital for infrastructure and expansion projects that will enable it to serve the growing needs of customers from a broad cross section of the economy.
“This year’s substantial investments in Kansas are a clear reflection of how important our operations in the state are to our overall network and our unwavering commitment to always operating safely – for our people and the communities in which we operate,” said Greg Lawler, BNSF general manager operations Kansas Division. “We know our customers are competing in a fast-paced, global economy where a smooth, efficient supply chain can be the difference between winning and losing in the marketplace. This year’s planned expansion and maintenance projects will help give BNSF the capacity flexibility it needs to support our customers’ growing demands and connect Kansas products to key markets.” Read more.
Reminder: New OSHA Reporting Requirements Went Into Effect January 1
January 12, 2015
Effective January 1, 2015, all employers must report all work-related fatalities within 8 hours and all in-patient hospitalizations, amputations and losses of an eye within 24 hours of finding out about the incident. Employers can report an incident by calling the OSHA hotline at 800-321-OSHA (6742), or by calling your nearest OSHA area office, during normal business hours. Find the location to your nearest OSHA office here. Additionally, members can report an incident online here.
Hours of Service Relief Passes Congress
January 12, 2015
The recently passed federal Omnibus Appropriations bill (Consolidated and Further Continuing Appropriations Act of 2015) provides relief from two new restrictions of the hours of service restart rule. Specifically, the legislation (1) suspends the requirement that all qualifying restarts contain two consecutive periods of time between 1 am and 5 am, and that (2) it can only be used once every 168 hours (or seven days). In other words, the restart rule reverts back to the simple 34 hour restart in effect between 2003 and 2013. Only part of the hours-of-service regulations change involves the voluntary 34-hour-restart. The rest of the hours-of-service rules remain unaffected by the bill. Notably, the 30-minute mandatory rest break was not eliminated and the 14-hour on-duty clock remains.
OSHA Drops Dust Rule
January 12, 2015
OSHA recently delivered industry a major holiday gift when the agency said it is pretty much walking away from the hazardous dust rulemaking. In November, OSHA quietly said it was putting the long-delayed rulemaking on a list of "longterm projects," and planning no action for at least a year. The agency now says it's going to further study the impact of any new dust regulations on small businesses during 2016, meaning for all intents and purposes the proposed rulemaking is dead, at least during the Obama Administration.
KGFA Submits Comments on FSMA Regulations
December 18, 2014
KGFA, along with the Kansas Cooperative Council and Kansas Association of Ethanol Processors, submitted joint comments on the FDA’s reproposed Food Safety Modernization Act (FSMA) regulations. You can also read them by going to www.regulations.gov and using the tracking number: 1jy-8g2l-25wp.
NGFA Unveils New Guide: ‘Rights and Obligations during FDA Inspections’
National Grain and Feed Association
December 18, 2014
Due to requirements in the Food Safety Modernization Act, the Food and Drug Administration (FDA) has increased inspections of grain elevators, grain processors and animal feed manufacturers. To assist in preparation for these inspections, NGFA has developed a new guide, entitled, “Rights and Obligations During FDA Inspections.”
The guide reviews:
The role of FDA in overseeing the safety of the U.S. food supply,
FDA’s authority to inspect grain and feed facilities,
Types of FDA inspections, and
The FDA inspection process.
The guide also outlines the 4 types of FDA inspections:
For Cause: Pertaining to public health concerns or animal illness and/or death.
Surveillance: Conducted to evaluate compliance with applicable regulations.
Compliance: Performed because FDA has information that suggests problems may or do exist at a facility.
Criminal: Conducted when information suggests that serious willful and/or egregious violations of applicable requirements are occurring within a facility.
It is important to prepare for an FDA inspection, have a plan in place, and know your facility’s rights and obligations. Policy and procedure manuals for FDA inspections should:
Designate specific responsibilities to employees directly involved with handling the inspection and to accompany the FDA inspector.
Provide directions on how to handle requests by FDA to interview employees. (FDA does not have express authority to interview employees.)
State whether to allow pictures to be taken. (Note - FDA’s authority to use cameras during an inspection is not well established.)
Explain how to respond to FDA requests for copies of records during the inspection, especially when confidential business information is requested.
State whether to sign FDA affidavits and declarations, and who should sign such documents.
Provide how and when to respond to FDA correspondence following the inspection.
For more information on preparing for an FDA inspection, see NGFA’s FDA Inspection Guide or contact Randy Stookey, KGFA Legal Counsel, at (785) 234-0461.
AgTrax and Konnection Partner to Address FSMA Compliance
December 18, 2014
AgTrax, the premier accounting program built specifically for agri-businesses has announced their strategic partnership and intent to integrate with the FSMA focused Bin Inventory and Traceability Module that was co-developed with Konnection.
Konnection - a division of Kasa Controls and Automation based in Salina, KS is a leader in the development of software and hardware solutions for automation and streamlining sensor controls in all types of industries.
The partnership will provide AgTrax customers with Dashboard visuals, Traceability reports, Scale interface integration and more solutions for improving operational efficiencies in the day-to-day management and security of their stored commodities. Software features include live integration with the AgRemote™ scale interface providing the required traceability functions as they are described in the FSMA legislation today.
“Grain and feed handling companies are looking for technology to improve their understanding of the movement of commodities into, out of and within their facility,” said Ted Barbieri, Business Development at Konnection. ““We are very excited to work with the AgTrax team as a strategic partner to deliver integrated inventory software technology and data required by the FDA for FSMA compliance. Together we can make a significant difference in the day-to-day operational efficiency of AgTrax clients.” Read more.
STB Order Directing Expanded Rail Service Metrics Reporting by All Class I Carriers October 13, 2014
KGFA staff received the following memo from the National Grain and Feed Association late last week:
We wanted to alert you that the Surface Transportation Board (STB) announced Oct. 8 that it will require expanded public reporting of rail service metrics on a weekly basis – including for the first time for nonagricultural products – and extend the reporting requirement to all Class I railroads.
As you know, the weekly reporting requirements previously had been applied only to the BNSF and Canadian Pacific Railways, and had applied only to grain (and to fertilizer for a period earlier this spring). The new STB order also expands the scope and granularity of service metrics that all Class I railroads now will be required to report, and applies some of the reporting requirements to encompass coal, crude oil, ethanol, automotive, intermodal and manifest traffic. Railroads are required to start reporting the newly expanded service metrics on Oct. 22.
The STB’s decision [Docket No. EP 724 (Sub. No.-3)] – attached to this email – contains several footnote references to statements and letters urging increased service metrics reporting submitted to the agency by the NGFA, Minnesota Grain and Feed Association and North Dakota Public Service Commission.
The STB wrote that it “agrees (with rail users that) there is a need for broader standardized performance data from the railroad industry as it continues to address existing service challenges (and) that it is necessary to apply these reporting requirements to all of the Class I carriers” given the interconnectedness of the national rail network and service problems experienced in the East and other regions. “The new reporting requirements will give the agency and stakeholders access to data needed for real-time understanding of regional and national service issues,” the STB decision stated.
Specifically, the STB order requires weekly reporting of the following rail service metrics:
System-average train speeds for grain, intermodal, coal, automotive, crude oil, ethanol, manifest and a category for “all other” traffic.
Weekly average terminal dwell times (in hours) – excluding cars on run-through trains transiting terminals – for the carrier’s system and its 10 largest terminals (as measured by car capacity).
Total cars on the carrier’s line, by type (e.g., covered hoppers, intermodal, tank cars, etc.)
Weekly average dwell times at origin for unit train shipments for grain, coal, automotive, crude oil, ethanol and all other unit trains.
Weekly total number of trains held short of destination or scheduled interchange for longer than six hours, again based upon train types (e.g., grain, coal, automotive, intermodal, crude oil, ethanol and all other products).
Weekly total number of loaded and empty cars in revenue service that have not “moved” in: 1) more than 120 hours); and 2) more than 48 hours but less than or equal to 120 hours – again, sorted by train types (grain, coal, automotive, intermodal, crude oil, ethanol and all other products). The term “moved” refers to the train movement or a spot or pull from a customer location.
Weekly total number of grain cars loaded and billed, by state, aggregated by commodity (e.g., corn, soybeans, wheat, etc.). This reporting is to include cars in shuttle service, dedicated train service, reservation, lottery, open and other ordering systems, and private cars. The STB also is requiring reporting of total cars loaded and billed in shuttle (or dedicated train) service versus all other ordering systems (including private cars). Reporting on grain cars also is to include metrics – by commodity and state – comparing week-to-week performance on outstanding car orders, average number of days late, new car orders received, number of car orders filled and number of orders canceled by the shipper and railroad.
Planned versus actual performance for grain shuttle or dedicated grain train round trips, by region, updated to reflect the previous four weeks.
Average daily coal unit train loadings versus planned loadings, by coal-production region.
Importantly, the STB’s order also requires collaborative reporting of detailed rail service metrics specific to the congestion at the Chicago terminal hub by the six Class I carriers operating at the Chicago gateway – BNSF, Union Pacific, CSXT, Norfolk Southern, Canadian Pacific and Canadian National. Reporting of the metrics for the Chicago terminal also is required starting Oct. 22.
USDA Rules For Emergency and Temporary Storage October 7, 2014
Reprinted with permission from the NGFA Newsletter,Volume 66, Issue 17, Sept. 5 2014:
With the potential for bumper crops exceeding permanent storage capacity in many parts of the country, grain elevator managers are reminded of the U.S. Department of Agriculture’s (USDA) rules for the use of temporary and emergency storage.
Regulations governing the use of temporary and emergency storage have been embodied in the U.S. Warehouse Act (USWA) Grain and Rice Licensing Agreement entered into with federally licensed grain warehouses, which also applies to licensed grain elevators operating under the Uniform Grain and Rice Storage Agreement (UGRSA) contract with USDA’s Commodity Credit Corporation.
For state-licensed warehouses, including those holding UGRSA contracts, the state licensing authority determines whether and under what conditions facilities are allowed to use temporary or emergency storage. Some states do not authorize emergency storage under any circumstances.
Under the USWA Grain and Rice Licensing Agreement, the following rules apply to both temporary and emergency storage: Warehouse operators must request and obtain licensing of emergency and temporary space before using it for storage; meet the security, net worth, financial assurance and insurance requirements that apply to conventional (permanent) storage space; and maintain separate inventory records of each commodity stored in temporary and emergency storage space, as well as separate accounting in the daily position record (DPR). Read more.
Workers Compensation Costs Decrease Due to HB 2134
September 9, 2014
In 2011, KGFA was part of a business coalition that helped develop, lobby for, and successfully send to the Governor’s desk HB 2134, a law that dramatically reformed Kansas workers compensation statutes. The attached document from the National Council on Compensation Insurance (NCCI) shows that Kansas workers compensation costs have seen an overall 10% decrease. The Kansas Insurance Department will take this data and should adjust rates accordingly for 2015. This is attributed to, in part, to the passage of HB 2134.
KGFA Supports NGFA STB Rail Issue
September 9, 2014
KGFA has joined several other state associations in in supporting the National Grain & Feed Association’s (NGFA) proposal to change STB’s current procedures for ag shippers. The federal Surface Transportation Board (STB) currently is engaged in a proceeding evaluating whether and how to change its procedures under which captive “grain” shippers may challenge freight rail rates believed to be unreasonable.
Importantly, the NGFA proposal would create a new rate-challenge methodology that would be applied to a wide range of 68 agricultural commodities and products derived therefrom, as well as ethanol and biodiesel. NGFA views this as a unique opportunity to bring about significant change.
KGFA and several other states are supporting the NGFA proposal in hopes that there is enough interest generated so that the STB gives serious consideration to conducting an oral hearing later this fall and subsequently issuing an actual proposed rule for public comment. Click here for more on the proposal.
EPA Forced to Release WOTUS Maps, Details Expansive Plan
September 9, 2014
House Committee on Science, Space and Technology Chairman Lamar Smith, R-Texas, on Wednesday August 27th, announced the release of maps produced by the EPA that detail all the waters and wetlands of each of the 50 U.S. states. The maps had until Wednesday remained private, but former EPA Deputy Administrator Bob Perciasepe agreed to release them following Smith's requests. According to the National Cattlemen's Beef Association (NCBA), the maps “appear to detail the extent of the Waters of the United States proposal.” “These maps show the EPA's plan to control a huge amount of private property across the country,” Smith said in a letter sent this week to EPA Administrator Gina McCarthy. “Given the astonishing picture they paint, I understand the EPA's desire to minimize the importance of these maps. But the EPA's posturing cannot explain away the alarming content of these documents.”
Smith urged McCarthy to release additional information explaining the existence of the maps and why taxpayer money was used to create them, “just days after the EPA announced its Waters of the U.S. rule (WOTUS).” Knowledge of the maps came as the Committee was doing research in preparation for a hearing regarding the proposed WOTUS rule, NCBA said.
“It is deplorable that EPA, which claims to be providing transparency in rulemakings, would intentionally keep from the American public a taxpayer-funded visual representation of the reach of their proposed rule,” Ashley McDonald, NCBA environmental counsel, said in a statement. “Unfortunately, it is just another blatant contradiction to the claims of transparency this Administration insists they maintain.”
NCBA said the maps show individual states could face upwards of 100,000 additional stream miles that could be regulated under the proposed rule. “This is the smoking gun for agriculture,” McDonald said. “These maps show that EPA knew exactly what they were doing and knew exactly how expansive their proposal was before they published it.”
Requests have since been sent to EPA asking they keep the public comment period open for at least 60 days to provide adequate opportunity review. The American Farm Bureau Federation is also planning to release its own maps detailing the extent of the WOTUS proposal in September, says American Farm Bureau’s Senior Director of Regulatory Relations Don Parrish. The EPA maps are available on the House Science Committee website.
NGFA Statement Concerning EPA Proposal to Revise Emissions Standards for Grain Elevators
September 9, 2014
The National Grain and Feed Association (NGFA) is undergoing an extensive review of the Environmental Protection Agency's (EPA) July 9 proposal that would amend the current section of its new source performance standards to update the provisions that affect grain handling, receiving and load-out operations.
The NGFA is pleased that the proposed rule references EPA's decision to rescind a Nov. 21, 2007, letter of interpretation under which it had equated temporary storage structures with permanent storage facilities when it came to determining whether elevators were subject to costly permitting requirements under the Clean Air Act. EPA in its proposed rule notes that it is rescinding that interpretation since it is "now aware that (temporary storage facilities) typically handle the grain less time throughout the year than other types of permanent storage facilities, and may require different treatment."
Since 2009, NGFA has been collaborating closely with other national grain handling and processing organizations to urge EPA to rescind the temporary storage letter of interpretation, and we're pleased those collaborative efforts and engagement with EPA have been successful on this aspect of this issue. During that engagement with EPA, NGFA has been aware of the agency's plan to eventually issue a proposed rule reexamining and updating its air-emission standards for grain elevators.
There are a number of significant issues in the EPA proposal that NGFA and its colleagues in other organizations will be evaluating very closely and developing joint comments. These issues include a new percentage-based formula proposed by EPA under which about one-third of the capacity of temporary storage space would be included when calculating whether an air permit is required. Read more.
Using less water for agriculture is an idea spreading across the Great Plains Circle of Blue
Five farm counties in western Kansas are voting this week on a course of action that cuts against the grain of American water history yet is becoming more common on the Great Plains as natural resource limits speed closer and farming communities struggle to maintain their livelihoods.
The five counties, all part of the Western Kansas Groundwater Management District (GMD), are voting on a water diet, a diet they are not required to endure but a diet that many in the region believe will stretch their finite water supply a little farther and allow them to pass farming’s flame to their children and grandchildren.
The farmers casting ballots in fairground meeting halls in Leoti, Scott City and three other county seats will endorse or reject a plan to reduce the amount of water they pump out of the renowned Ogallala Aquifer by roughly 20 percent through the year 2020.
Beneath eight plains states, the Ogallala is the largest underground freshwater reserve in the United States, but it cannot last at current rates of use. More than 95 percent of the water is sprayed on farm fields to sustain a $US 30 billion agriculture economy. In parts of western Kansas the aquifer is nearly exhausted or already gone. When the water goes, towns wither.
By the end of Friday when ballots are due in Greeley County, the last of the five to vote, the entire Western Kansas GMD may become the second jurisdiction and the largest in the state to take advantage of a water conservation law signed by Republican Governor Sam Brownback in 2012. Read more.
Firefighters practice grain bin rescue with simulations Nebraska TV
A training team out of Kansas has spent the last two years working with farmers, plant managers, and employees on the best ways to avoid being trapped in grain and the safest ways to help someone who is. They recently shared their program and techniques with some volunteer firefighters here in Nebraska.
Ed Morrison, the technical programs manager for the state of Kansas, says one of the best ways to learn about grain engulfment rescue is by doing it. The Kansas Fire and Rescue Training Institute Grain Engulfment Rescue trailer is equipped to sink a person down in some grain so others can practice getting them out. Read more.
FDA publishes final compliance policy guide on facility registration
The provisions include a requirement for food facilities register with FDA, a requirement for registered facilities to biennially renew their registration with FDA, and provides FDA authority to suspend a food facility's registration.
Registration requirements apply to food facilities that manufacture, process, pack or hold food for human and animal consumption in the U.S. – to include grain elevators (See 21 CFR 1.227(b)(2)). The CPG replaces "Compliance Policy Guide Sec. 110.300 Registration of Food Facilities Under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002."
According to the FDA, at least 2,000 animal food and ingredient facilities failed to reregister their facilities in 2013, as required by FSMA. When the Bioterrorism Act created the facility registration requirement, FSMA made re-registration biennial in even-numbered years between Oct. 1 and Dec. 31. If your grain elevator facility has not re-registered, you must do so immediately, as the Bioterrorism Act prohibits facilities from operating without being registered. To register your facility, visit FDA's facility registration website here. There is no penalty for late registration, but FDA is attempting to visit all firms that have not re-registered.
Utility Sales Tax Exemption Reminder: Utilities used to store and process grain qualify for state sales tax exemption
By Randy Stookey, KAEP General Counsel
I was recently asked by a member whether Kansas grain elevators qualify for a sales tax exemption on utilities. The short answer is yes. Under Kansas law, utilities - including electricity, gas, and water – which are “consumed in a production process” are exempt from state sales tax. Kansas Department of Revenue (KDOR) publication KS-1550 defines a “production process” to include the storage and processing of grain. This sales tax exemption can potentially save elevators hundreds, if not thousands, of dollars annually.
Under this exemption, it is the purpose of the utility – i.e., the fact that it is used in a production process – which qualifies the utility for the exemption. To qualify for the sales tax exemption the utility must be: (1) used in the actual process; (2) essential to the process; (3) consumed, depleted or dissipated within one year; and (4) not reusable for such purpose.
To claim a sales tax exemption on a utility, KDOR pub. KS-1550 requires the elevator to first measure the amount of each utility that qualifies for the exemption and express that utility as a percentage of the total utility purchased on each meter for which the elevator is requesting the exemption. Instructions and examples for determining the exempt percentage of each utility can be found on the KDOR utility sales tax exemption request form (Statement for Sales Tax Exemption on Electricity, Gas or Water Furnished Through One Meter, Form ST-28B). The assistance of an electrician may be useful in completing this part of the form.
Once the percentage of each exempt utility has been calculated, the elevator should complete KDOR Form ST-28B and submit the completed form to its utility provider along with all the work-papers and documents used to compute the elevator’s exempt percentage. The utility provider may forward the exemption request to KDOR for review before granting the exemption. Once approved by KDOR, the utility will grant the exemption. Elevators are advised to retain a copy of all request forms and calculation worksheets used to determine the percentage of each exempt utility, as KDOR may ask to see the worksheets when auditing the utility exemption or approving a request.
Note: Whenever there is a change in the elevator’s “exempt percent,” the elevator must immediately file a revised Form ST-28B with its utility provider. It is a misdemeanor for any elevator to issue an exemption certificate in order to unlawfully avoid payment of sales tax, with potential penalties of up to $1,000.
Clarification of whether a sale is taxable or exempt will save you time in dealing with the issue in the future and could also save you money by avoiding costly sales tax deficiencies. Many questions can be answered by customer representatives over the phone or by consulting KDOR’s Policy Information Library on the KDOR website.
When there is a question that is not answered in the KDOR publications, below, the elevator is strongly advised to contact KDOR. For unique situations that may require an interpretation or clarification based upon the law, elevators can submit the question in writing to KDOR by mailing the question to: Office of Policy and Research, Kansas Department of Revenue, 915 SW Harrison St., Room 230, Topeka, KS 66612; or, fax to: 785-296-7928. As always, however, your association staff is here to assist you whenever possible.
Kansas Dept. of Revenue Publication: Kansas Business Taxes for the Agricultural Industry (KS-1550, Rev. 1/14)
Kansas Statutes Annotated 79-3606(n)Kansas Administrative Regulation 92-19-53Revision of Hard White wheat classes
FGIS revises Hard White wheat classes
The USDA Federal Grain Inspection Service issued a Program Notice eliminating Hard Red Winter wheat & Hard Red Spring wheat as contrasting classes in Hard White wheat, effective May 1, 2014.
Applications for State Rail Service Improvement Projects
KGFA received a letter from the Kansas Department of Transportation (KDOT) calling for applications for SFY 2015 State Rail Service Improvement Fund projects.
Effective July 1, 2014, KDOT will have $5,000,000 available through the State Rail Service Improvement Fund (SRSIF) for railroad rehabilitation, capacity improvement and construction projects. Qualified entities that can may make an application include: any Class II or III (short line) railroad, as defined in 49 C.F.R., part 1201 holding a certificate of public convenience from the Surface Transportation Board; port authorities established in accordance with Kansas law; local units of government (cities and counties); and Kansas shippers.
The SRSIF application form can be accessed at from the KDOT webpage http://www.ksdot.org/burRail/Rail/loans/railapp2014.pdf. Please complete and return your application and any supporting documents to JohnM@ksdot.org no later than June 6, 2014. Guidelines for each of the SRSIF programs is included with the letter. It is anticipated that project award announcements will be made no later than July 7, 2014.
2014 OSHAWebinar Series
April 1, 2014
Epstein Becker Green is pleased to announce the 2014 Occupational Safety and Health Administration (OSHA) Webinar Series hosted by Eric J. Conn, Chair of Epstein Becker Green’s OSHA Practice Group. This five-part webinar program will provide an in-depth analysis and offer tools to assist employers facing the daunting task of complying with OSHA's numerous federal and state occupational safety and health standards and regulations.
Registration for all webinars is complimentary.Click here to register for any OSHA webinar in the 2014 series.
Part I: OSHA's Temporary Worker Initiative Tuesday, April 8, 2014 at 1:00 PM - 2:00 PM (EDT)
Part II: OSHA's Severe Violator Enforcement Program Tuesday, June 10, 2014 at 1:00 PM - 2:00 PM (EDT)
Part III: Preparing for and Managing an OSHA Inspection
Wednesday, September 17, 2014 at 1:00 PM - 2:00 PM (EDT)
Part IV: OSHA's Multi-Employer Worksite Policy Thursday, November 13, 2014 at 1:00 PM - 2:00 PM (EST)
Part V: 2015 OSHA Forecast Wednesday, December 10, 2014 at 1:00 PM - 2:00 PM (EST)
And Safety For All: ensuring your facility has a game plan for when inspectors do not play by the rules
By Randy Stookey, KGFA General Counsel
March 3, 2014
Recently, an association member presented an interesting - if not alarming - question to association staff. The member described a situation where an inspector with a federal agency failed to follow standard operating safety procedures regarding bin entry. Even after the inspector was notified of the safety rule, and was asked to comply, the facility could not gain compliance with the safety standard.
What is a facility to do in this situation?
As an industry, we are acutely aware of our legal, regulatory, and moral duty to ensure the safety of all persons on-site, at all times. Clearly, we understand that our safety standards and procedures apply to our employees, on-site contract workers, and visitors. We are made especially aware of this standard by the heightened scrutiny placed on our industry under OSHA’s Local Emphasis Program.
However, unique circumstances exist during interactions when official state and federal inspection personnel are on-site. The normal flow of daily operations is interrupted, and Operations Managers and Safety Officers find themselves removed from their normal duties to locate and provide records, answer questions, and accompany inspectors around the facility. Through all of this, we can become preoccupied and not fully recognize our duty to ensure the safety of the inspection staff, or assume that they will automatically conduct themselves in a professional and safe manner.
So what happens in the rare circumstance when inspection personnel unnecessarily expose themselves to unsafe or hazardous situations in violation of our (and OSHA) safety standards? Are our hands tied so that the inspectors simply have free reign of our facilities?
In finding answers to these difficult – but vitally important – questions, I spoke with the Acting Director of DOL/OSHA’s Regional Office in Wichita, and received the following guidance on the proper procedure to handle such situations:
Federal agencies are required to promulgate safety standard operating procedures (SOP) for their employees. (29 CFR, Part 1960.1(g)).
When a federal inspector is on-site at a facility, that inspector is required to follow the agency’s inspection SOPs and safety procedures.
Federal inspectors are also required to comply with all OSHA industry workplace safety standards.
If an inspector’s activities are not consistent with OSHA workplace safety standards, then the facility may expose themselves to both private liability and regulatory enforcement action for any injuries caused by accidents related to that noncompliant, unsafe behavior.
In order to protect the facility from liability and regulatory enforcement actions, it is advised that the facility’s safety officer initially notify inspection personnel of its safety SOPs prior to the inspection, make a record of that notice, and accompany the inspection personnel at all times while on-site.
If the safety officer observes any unsafe activity by the inspection personnel, the safety officer should immediately notify the inspector of the safety SOP requirement, explain why the action is unsafe and in violation of the safety SOP, and provide the inspector with an alternative action in compliance with the safety SOP.
If the inspection personnel refuses to comply with the safety SOP and continues the unsafe activity, the safety officer should request a brief delay in the inspection in order to consult with the inspection personnel’s supervisor.
The safety officer, or operations officer, should then immediately contact the inspection personnel’s supervisor to find a resolution to the situation, being prepared to provide the inspection personnel’s supervisor with the following information: the site location, the name of the inspector, the pertinent facts of the safety violation to include the safety standard that was/or would have been violated, the request that was made to the inspector to alter their activity, and the inspector’s response to that request.
If the matter is resolved through contact with the area supervisor, then the safety officer should make an internal memorandum of record detailing:
the site location and a general description of the site
the name of the inspector(s)
the date of the incident (or incidents if this has happened on prior occasions)
a record of the safety briefing, if any, conducted prior to the inspection
the pertinent facts of the safety violation to include the standard that was/or would have been violated
the clear directive/request that was made to the inspector to stop the unsafe activity
the inspector’s specific response to that directive
the fact that the inspector was provided with an alternative action to complete the inspection in a manner that was consistent with safety standards
the inspection personnel’s response to the alternative action request
the name and contact information of the person that the safety officer or operations officer contacted in the inspector’s chain of command following the inspector’s refusal to follow the safety SOP and directive, and
any other information deemed relevant to the situation.
Note: This is a vitally important step in protecting the elevator from future civil suit or regulatory enforcement actions.
If the matter is not resolved through contacting the inspection personnel’s supervisor, then the safety officer should contact their area OSHA office or KGFA for further assistance.
When the safety officer contacts the area OSHA office or KGFA, he/she should be prepared to provide all of the information above, along with a brief explanation of the response received from the inspector’s supervisor, and why that response did not resolve the situation.
Remember that the more facts you can provide to OSHA the better OSHA will be equipped to assist the elevator in resolving the noncompliance.
I hope you have found this information helpful. Remember, most inspectors intend to do their job in a professional and safe manner. The best approach to resolving any issue with inspection personnel is to address the issue on the lowest (and most direct) level as possible. As always, however, your association staff is here to assist you whenever possible.
“OSHA Visit” Webinar materials available
March 3, 2014
Those who were unable to view the Epstein Becker Green webinar on "Preparing For an OSHA Visit at Your Grain Facility" on February 11, 2014 may view the event and other resources using these links.
NGFA releases sweep auger guide for industry Asmark Institute March 3, 2014
The National Grain & Feed Association (NGFA) has completed a sweep auger guide designed to assist grain handlers in developing and implementing a sweep auger operations safety policy. Over the past several years, there has been uncertainty within the industry regarding what type of sweep auger equipment can be used, and the types of procedures that OSHA may find acceptable. NGFA’s sweep auger guide is consistent with the OSHA sweep auger memo that was released in May of 2013. NGFA’s Safety, Health, Environmental and Quality Committee recommended the new guide be developed to assist the industry in complying with the OSHA memo. Contact your association staff for a copy of the new guide.
IRS issues final rule on employer health coverage responsibility under ACA Asmark Institute
March 3, 2014
On February 12, 2014, the Internal Revenue Service (IRS) recently issued final regulations with guidance on large employers' shared responsibility for employee health insurance coverage under Section 4980H of the Internal Revenue Code. Under the final regulations, the employer mandate will apply to employers with 100 or more full-time employees beginning January 1, 2015. The final rules will apply to midsize businesses with 50 to 99 full-time equivalent employees beginning January 1, 2016. Companies that have fewer than 50 employees are exempt from providing coverage or filling out any forms in any year.
Senate passes 2014 Farm Bill
February 6, 2014
On Tuesday, the U.S. Senate passed a new comprehensive farm bill that reauthorizes agriculture subsidies, rural conservation, federal nutrition assistance and energy related provisions over the next five years. The farm bill passed with a final vote of (68-32) and with the bill now passed the House & Senate, the president is expected to sign the legislation into law as soon as it lands on his desk.
Click here for a link to the 2014 Farm Bill that includes a 1-page summary document.
New overweight sealed container rules
February 6, 2014
Following a meeting last month between KGFA staff, Kansas Motor Carriers Association staff, the Kansas Highway Patrol, and the Kansas Department of Transportation (KDOT), the following changes have been made to KDOT’s Sealed Ocean Container Rules:
Seals must now meet “U.S. Customs & Border Patrol Specifications,” and
New Rule No. 16 - An “oversize load” sign is no longer required for trucks hauling overweight sealed containers.
Click here for the complete updated rules for sealed ocean containers.