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.

May 19, 2000

Mr. Robert J. Johnson
5536 W. Rita Dr.
Wes Allis, WI 53219-2253

Dear Mr. Johnson:

Thank you for your April 14, 2000 letter to the Occupational Safety and Health Administration's (OSHA's) [Directorate of Enforcement Programs (DEP)]. You had a question concerning the tank storage of liquid asphalt which is used on both federal highways and city streets. Your paraphrased question is restated below for clarity.

Question: Which governmental agency has standards that cover large tanks with a holding capacity over 10,000 gallons of liquified paving asphalt 77-5 and 77-10 with a flashpoint over 200° Fahrenheit (F)?

Reply: OSHA has a standard regulating most flammable and combustible liquids, but that standard, 29 CFR §1910.106, does not cover Class IIIB liquids (those having a flashpoint over 200°F.). Liquid asphalt is a Class IIIB liquid. To the extent that there are recognized hazards associated with liquid asphalt, OSHA could, in appropriate circumstances, issue citations under the general duty clause (section 5(a)(1)) of the Occupational Safety and Health Act of 1970 (OSH Act) which states: "Each employer shall furnish to each of his employees employment and place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees." In evaluating the hazards of liquid asphalt, OSHA would consult such sources as the 1996 revision of the NFPA 30 (Flammable and Combustible Liquids Code). Hazards associated with Class IIIB liquids are addressed in NFPA 30.

It is possible that other federal agencies, such as the Environmental Protection Agency and the Department of Transportation, may have regulations applicable to certain aspects of asphalt storage or transportation. Depending on the nature of your concerns, you may wish to contact those agencies.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that the enforcement guidance contained in this response represents the views of OSHA at the time the letter was written based on the facts of an individual case, question, or scenario and is subject to periodic review and clarification, amplification, or correction. It could also be affected by subsequent rulemaking; past interpretations may no longer be applicable. In the future, should you wish to verify that the guidance provided herein remains current, you may consult OSHA's website at
http://www.osha.gov. If you have any further questions, please feel free to contact the [Office of General Industry Enforcement] at 202-693-1850.

Sincerely,


Richard E. Fairfax, Director
[Directorate of Enforcement Programs]

[Corrected 6/2/2005]