OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

February 16, 1982

Lawrence W. Bierlein, P.C.
Law Offices
910 Seventeenth Street, N.W.
Washington, D.C. 20006

Dear Mr. Bierlein:

Thank you for your letter of January 27, 1982, regarding indoor container storage requirements.

In reference to your next to the last paragraph, we confirm your understanding that under current directions to OSHA field personnel, such requirements constitute only a de minimis violation with no dollar penalties or abatement requirements. OSHA Instruction CPL 2.11A, De Minimis Violations, (copy enclosed), directs CSHO's to recognize insignificant standards and minor technical deviations which have no direct or immediate relationship to safety and health of the employee as de minimis violations.

We are forwarding copies of this letter and your letter to our Regional Administrators for their information.

Should you have any further questions, please do not hesitate to call or write.

Sincerely,



Patrick R. Tyson
Director
Federal Compliance and State Programs

Enclosure



January 27, 1982

Mr. Michael Moore
Office of Standards
Occupational Safety & Health Admin.
Department of Labor
200 Constitution Ave., N.W.
Washington, DC 20210

Dear Mr. Moore:

Table H-14 of the flammable and combustible liquids standard in 1910.106 describes indoor container storage requirements, in terms of maximum allowable gallonage per storage pile. Note 2 to that table reads: "Aisles shall be provided so that no container is more than 12 feet from an aisle. Main aisles shall be at least 8 feet wide and side aisles at least 4 feet wide." Note 3 to the table declares: "Each pile shall be separated from each other by at least 4 feet."

There are no apparent exceptions to these aisle requirements other than those in Section 1910.106(d)(ii). These include all "bulk plants, service stations, refineries, chemical plants, and distilleries"; "Class I or Class II liquids in the fuel tanks of a motor vehicle, aircraft, boat, or portable or stationary engine"; "Flammable or combustible paints, oils, varnishes, and similar mixtures used for painting or maintenance when not kept for a period in excess of 30 days"; and "Beverages when packaged in individual containers not exceeding 1 gallon in size."

The implication of the standard is that consumer commodities such as medicines, foodstuffs, cosmetics, and toiletries in processing plants and warehouses must be stacked with these aisle widths, with no container more than 12 feet from an aisle. Table H-14 is not accompanied by a note such as that appearing in Table H-12: "Container exemptions: Medicines, beverages, foodstuffs, cosmetics, and other common consumer items, when packaged according to commonly accepted practices, shall be exempt from the requirements of Section 1910.106(d)(2)(i) and (ii)." In my view, such a note ought to follow Table H-14 as well, but it does not.

This standard was drawn from the NFPA Code 30 many years ago. In the intervening decade, the NFPA Code has undergone substantial modifications, including one for which I petitioned in the early 1970s. That modification is now designated Section 4-1.2(d) of NFPA Code 30, 1981 edition, and reads: "Medicines, foodstuff, cosmetics and other consumer products containing not more than 50 percent by volume of water miscible liquids and with the remainder of the solution not being flammable when packaged in individual containers not exceeding one gallon in size" are not subject to any of the container storage requirements. In other words, under the latest relevant consensus standard, aisle widths and distances from the aisle are not required for consumer commodities made of 50% or less alcohol or other water-miscible liquids.

I would appreciate your confirmation of my understanding, that under current directions to OSHA field personnel, such requirements constitute only a "de minimis" violation, as that term is used in Section 1903.14. That is, these are "violations which have no direct or immediate relationship to safety or health," and are not subject to dollar penalties or abatement requirements.

Thank you very much for your consideration of this issue.

Sincerely,



Lawrence W. Bierlein