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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 https://www.osha.gov.
MEMORANDUM FOR: Regional Administrators FROM: John B. Miles, Jr. Director Directorate of Compliance Programs Subject: Coverage of Stored Flammables Under the Process Safety Management Standard
In a recent decision,1 the judge ruled that coverage under OSHA's Process Safety Management Standard (1910.119) does not extend to stored flammables in "atmospheric tanks," even if they were connected to a "process" within the definition of the standard. This is contrary to consistent OSHA interpretations of the standard. However, the decision will not be appealed because it is based on problems in the text of the standard itself, which support the judge's decision. We have asked the Directorate of Safety Standards Programs to consider developing amendments to the standard which would clearly state our intention to cover flammables stored in atmospheric tanks when they are connected to a covered process, or when they are located such that there is a reasonable probability that they could be involved in the release of a covered highly hazardous chemical.
Until the standard is revised, however, OSHA will abide by the Meer decision, and will not cite 1910.119 under circumstances when coverage of the process would be based partly or solely on the quantity of flammable liquid in connected atmospheric storage tanks, that would otherwise qualify for the 1910.119(a)(1)(ii)(B) exemption. Citations under 1910.119 will continue to be issued when the quantity of flammables in the process, not counting atmospheric storage, exceeds 10,000 pounds, or where the quantities in storage do not fall within the exception for other reasons (i.e. storage not atmospheric, storage relies on refrigeration, quantities not actually in storage).
Citations for 1910.106 may apply to situations where flammable liquids are stored. In other cases where stored flammable liquids subject to the exemption are connected to a process, and a documentable hazard exists which involves a serious risk to workers, 5(a)(1) citations may be issued. Since such citations will in all likelihood be litigated, early involvement of the Solicitor in such cases is mandatory, to ensure that the basis for citation has legal clearance. Employers inquiring about coverage of stored flammables under PSM should be informed that OSHA is following the decision in Meer, pending possible revisions to the standard to resolve the ambiguity, but that citations may be issued under 5(a)(1) if circumstances warrant.
For further information, contact the Office of General Industry Compliance Assistance (Ray Donnelly or Alcmene Haloftis on 202-219-8041 or Mike Marshall on 202-219-8118, x112).
This memorandum should be filed with CPL 2-2.45. Process Safety Management.
1Secretary of Labor v. Meer Corporation, OSHRC Docket No. 95-0341