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.

March 14, 2003

Ms. Kembra Sexton Taylor
Deputy Secretary and General Counsel
Commonwealth of Kentucky Labor Cabinet
1047 US Hwy. 127 S. - Suite 4
Frankfort, KY 40601-4381

Dear Ms. Taylor:

Thank you for your February 13, 2003 letter to the Occupational Safety and Health Administration (OSHA). Your letter was originally addressed to Mr. Steven Witt in OSHA's Directorate of Standards and Guidance, but has been forwarded to the Directorate of Enforcement Programs, as you have requested information regarding OSHA's policy with respect to enforcement of its Process Safety Management of Highly Hazardous Chemicals; Explosives and Blasting Agents standard (PSM), 29 CFR 1910.119, in the distilled spirits industry.

Your letter references a September 8, 1997 letter from former Secretary of Labor Alexis M. Herman to former Kentucky Senator Wendell Ford. That letter addresses a number of issues including the OSHA PSM exemption for atmospheric storage of flammable liquids; possible amendment of the PSM standard to cover the atmospheric storage of flammable liquids; consideration in OSHA's rulemaking of whether processes used by distilleries merit alternative treatment under a revised PSM standard; and OSHA's enforcement position as it relates to PSM at distilleries. Specifically, your letter inquires whether the enforcement policy stated in the last sentence of Secretary Herman's 1997 letter, which provides that "(e)xcept in the event of a fatality or catastrophe involving a process that uses ethyl alcohol in a distillery or related facility, OSHA is not enforcing and will not enforce the Process Safety Management standard with respect to processes in distilleries and their related facilities pending completion of OSHA's revision of the PSM standard," as well as the MEER exemption for stored flammable liquids in atmospheric tanks, is still in effect.

As your letter correctly indicates, the enforcement policy announced in Secretary Herman's September 1997 letter is not a formal letter of interpretation. Secretary Herman's letter sets forth OSHA's policy regarding the manner in which OSHA will enforce the PSM standard in a particular industry, and does not change the scope or coverage provisions of the standard. With respect to the MEER1 ruling and the MEER Memorandum2 addressed in the Secretary's letter, OSHA's enforcement policy that the Agency would not cite employers for violations of 1910.119 where stored flammable liquids in atmospheric tanks were connected to a process, unless the process outside of the amount in storage contained more than 10,000 pounds of the substance, remains in effect and is applicable to the distilling industry. Furthermore, although distillers are required to comply with the PSM standard, OSHA is not enforcing and will not enforce the PSM standard with respect to processes in distilleries and their related facilities in Standard Industrial Classification (SIC) 2085, except in the event of a fatality or catastrophe involving a process that uses ethyl alcohol in a distillery or related facility.

As you know, in October 2000, OSHA announced in its Unified Regulatory Agenda its intention to publish a notice of proposed rulemaking regarding possible amendments to the PSM standard. You have inquired whether OSHA's subsequent removal of this project from the Unified Regulatory Agenda in December 2001 modifies or rescinds the enforcement policy announced in Secretary Herman's September 8, 1997 letter to Senator Ford. OSHA's removal of the PSM project from its agenda for immediate regulatory action was based on consideration of resource limitations and other priorities. It does not modify or rescind the agency's September 8, 1997 policy concerning enforcement of the PSM standard in distilleries, nor its May 1997 policy regarding the MEER decision, both of which continue in effect.

As a condition of OSHA's approval of the Kentucky State Plan, the state is required to adopt and enforce standards and enforcement policies that are either identical to or "at least as effective" as comparable federal standards. Kentucky has adopted a state PSM standard identical to that of Federal OSHA. Your recent letter describes PSM citations issued by the Kentucky OSH program to a distiller during a general schedule inspection. (It is our understanding that the process in question contained greater than 10,000 pounds of alcohol (a flammable liquid) outside of storage.) As discussed above, in a Federal enforcement state, OSHA would not issue citations for a PSM violation involving a process that uses ethyl alcohol in a distillery or related facility, even if the process in question outside of storage exceeds the threshold quantity (10,000 lbs.), except in the case of a fatality or catastrophe. Although this policy is not directly binding on Kentucky, OSHA would encourage Kentucky to adopt a consistent policy regarding PSM enforcement at distilleries within your state.

In summary, OSHA's current enforcement policy generally limits citations under the PSM standard in all industries to situations where more than 10,000 pounds of flammable liquid are present outside of the amount in storage, consistent with the MEER decision. A further limitation applies within the distilled spirits industry, where PSM citations will be issued only in the event of a fatality or catastrophe involving a process that uses ethyl alcohol in a distillery or its related facilities in SIC 2085. We hope this information is of assistance in responding to your inquiry. 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

Cc: Cindy Coe-Laseter

 

 


1 Secretary of Labor v. MEER Corporation, OSHRC Docket No. 95-0341 - Administrative Law Judge ruling stating that the language of the PSM standard did not support OSHA's interpretation that the atmospheric storage of flammable liquids would be covered if connected to a "process." [ back to text ]

2 Memorandum for Regional Administrators from John B. Miles, Jr., Director, Directorate of Compliance Programs, dated May 12, 1997. [ back to text ]