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.
August 22, 1990
Mr. John A. Knoll, Sales Manager Natural Gas Odorizing, Inc. 3601 Decker Drive P.O. Box 1429 Baytown, Texas 77522-1429
Dear Mr. Knoll:
This is in response to your letter of June 18, in which you raised the question of jurisdiction over tanks of malodorant gas.
Section 4(b)(1) of the Occupational Safety and Health Act (OSHA Act) provides that "nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health." The purpose of this exemption is to avoid duplication in Federal regulation of safety and health conditions in the workplace. Once another Federal agency exercises its authority to regulate specific safety conditions, the Occupational Safety and Health Administration (OSHA) cannot enforce its regulations, covering the same conditions, against an employer regulated by the other Federal agency.
Since the Department of Transportation (DOT) regulates the safety of refitted propane tanks that are used to store malodorant agents at pipeline facilities, OSHA is thereby precluded from regulating safety conditions related to these tanks. This is true with respect to diking and placarding, even though D.O.T. has no regulations specifically related to either.
Patricia K. Clark Director Designee Directorate of Compliance Programs
June 18, 1990
Ms. Patricia Clark Department of Labor O.S.H.A. Director of Compliance Programs 200 Constitution Ave., N.W. Room No. North 3469 Washington, D.C. 20210
Dear Ms. Clark:
Enclosed is a copy of a letter from George W. Tenley Jr., Director, Office of Pipeline Safety.
Discussion with your Ray Donnelly, indicated that the items in question would fall under the jurisdiction of the d.O.T. Office of Pipeline Safety. Does the Occupational Safety and Health Administration have any jurisdiction over these malodorant tanks?
If so, would you please respond to the same questions listed?
Please note: A material safety data sheet is provided to all companies using this material.
John A. Knoll Sales Manager S. East USA
Of Transportation Washington, D.C. 20590
Research and Special Programs Administration
Mr. John A. Knoll Sales Manager Natural Gas Odorizing, Inc. 3601 Decker Drive P.O. Box 1429 Baytown, Texas 77522-1429
Dear Mr. Knoll:
I am responding to your letter of November 8, 1989, in which you ask several questions about refitted propane tanks (125-10,,000 gal.) that are used to store malodorant at pipeline facilities.
Question (1): Do these storage facilities fall under the jurisdiction of the D.O.T.?
Answer: Facilities that are "used in the transportation of gas' by pipeline (except rural gathering of gas) come under DOT's jurisdiction under the Natural Gas Pipeline Safety Act of 1968. Other than certain offshore facilities regulated by the Department of the Interior, such facilities are subject to the safety regulations authorized by that statute that are published in Part 192 of Title 49 of the Code of Federal Regulations. Although "used in the transportation of gas" is not defined, in light of the statute's safety purpose, we apply the concept broadly to include facilities related to the transportation process. Thus, we consider storage tanks from which odorant is injected into gas pipelines to be "used in the transportation of gas" by pipeline and within DOT's jurisdiction under the statute and regulations. While, as you indicate, Part 192 does not contain regulations applicable specifically to odorant storage tanks, the tanks are subject to Part 192 regulations that apply to pipeline facilities in general.
Question (2): Is diking required?
Answer: Diking is not required.
Question (3): Is marking/placarding required?
Answer: Neither marking nor placarding is required.
Question (4): If dikes are required, are earthen dikes suitable?
Answer: Dikes are not required.
Question (5): If marking is required, is the 1228 Placard suitable?
Answer: Marking is not required.
Question (6): Some companies have already put earthen or concrete dikes around their storage tanks, and have marked them with either a 1228 placard or a Flammable sign. Since we see no direct requirements under D.O.T., do the marking and dikes put these companies under the jurisdiction of another federal agency and if so, which one?
Answer: The only other Federal agencies of which we are aware that may have jurisdiction over the tanks are the Occupational Safety and Health Administration in the Department of Labor and the Environmental Protection Agency. You should contact these agencies directly for complete information about their jurisdiction.
George W. Tenley, Jr. Director Office of Pipeline Safety