WASHINGTON, Dec. 7, 2016 - The election of Donald Trump provides ag retailers “an opportunity for us to take on some real regulatory reform,” Agricultural Retailers Association CEO Darren Coppock told the group’s members at their annual conference in Orlando last week.
At the top of the list is Process Safety Management (PSM) standard, which the Occupational Health and Safety Administration (OSHA) rewrote and issued in July 2015. The change eliminated a longstanding retailer exemption and would have forced thousands of ag retailers who handle anhydrous ammonia to comply with the broadly written regulations, which address the safety of facilities that handle hazardous chemicals.
Litigation followed quickly, with The Fertilizer Institute and ARA leading the charge. The groups were rewarded in September when the D.C. Circuit Court of Appeals found OSHA should have gone through notice-and-comment rulemaking.
“Three Democratic appointees to that court all agreed with our position,” Coppock said. OSHA has asked for en banc review of the decision – elevation of the question to all the judges on the court. Coppock said the odds favor ARA and TFI. “The Circuit Court doesn’t usually say, ‘Gosh, we made a mistake. Let’s go back and look at this again.”
Because the litigation is not over, OSHA has yet to decide how to move forward on the PSM standard, changes to which were prompted by the deadly explosion and fire at a fertilizer plant in West, Texas, in 2013.
Following the court decision, “OSHA for some reason has come to the conclusion that they can’t do guidance of any sort, and we said, this just means you can’t change the scope of the regulation without going through notice and comment,” Coppock said.
The legal fight hasn’t been cheap. Coppock said ARA’s legal bills for the case are about $400,000. “Since the action was against a government agency, we’re going to try and get that money back,” he said.
But he noted that if ARA goes up directly against environmental nonprofit groups in court, “we won’t be able to get that money back. So there will be a need for a substantial commitment in resources to fight those battles.”
Coppock told the members that he’s asked ARA staff to come up with a list of regulations that are duplicative, costly and unnecessary. That effort is in its early stages, he said in a post-conference interview with Agri-Pulse, but one example would be National Pollutant Discharge Elimination System (NPDES) permits required for pesticide applications in some states.
“The NPDES rule is a great example, where you have to get permits for application of pesticides that are already regulated under FIFRA,” Coppock said, referring to the Federal Insecticide, Fungicide and Rodenticide Act. “That extra layer of regulation provides absolutely no safety benefit. All it does is expose people to more litigation risk and cost. That’s the kind of stuff that needs to be cleaned out.”
At the conference, Coppock mentioned a white paper on regulatory reform and improvement that he said was “quarterbacked” by the American Farm Bureau Federation. Signed by more than 50 farm groups and companies, the paper says that over the years, “Republican and Democratic presidents alike have reiterated the desirability and need for an honest, transparent, open and credible regulatory process.”
At the top of the regs targeted by the groups is the EPA’s Waters of the U.S. rule, or WOTUS, which Coppock said isn’t going anywhere. “I think it can be fairly well concluded that it’s not going to happen,” he told conference attendees. The rule, issued last year, has been stayed by the 6th Circuit Court of Appeals in Cincinnati.
Continuing his summary of 2016 accomplishments, Coppock said ARA filed an amicus brief with EPA’s Environmental Appeals Board when it was considering whether to uphold the agency’s cancellation of flubendiamide (tradename: Belt). The result was a favorable decision from the EAB that allowed continued sales of the pesticide held by dealers.
EPA had for years allowed canceled products to be sold and used so long as they were no longer in the hands of the manufacturer. But when sulfoxaflor (Transform) was canceled for about a year after a court decision that found EPA had not properly considered its effects on bees, the agency did not allow sales by retailers.
“With sulfoxaflor, for the first time, EPA tried to say that only product in the hands of the grower can be used,” Coppock said. “Anything else, you’ve got three options: send it back to the manufacturer, hang on to it and hope that EPA approves a new label, or export it to a country where it’s legal to use.”
Coppock said ARA made its case to EPA but didn’t win the argument. But when the Belt case came along, and EPA tried to do the same thing, ARA made the case again, and the EAB “specifically cited our brief” in finding that the agency had to allow existing stocks to be sold, he said.
“We set a good precedent with the existing stocks provision, and it’s one that I hope with the new administration, we’ll be able to keep in place for a long time to come.”
Coppock said he’s not sure what new litigation might be in store in 2017, but mentioned the possibility of lawsuits that would go after EPA for not properly reviewing the effects of pesticides on endangered species.
In other news, Coppock said in the interview that ARA members may be looking at a dues increase next year. The group’s board will consider a package of proposals in February to raise dues by an average of about 14 percent, he said.
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