Standard Interpretations - Table of Contents|
| Standard Number:||1910.119; 1910.119(a)(1)(i); 1910.119(a)(1)(ii); 1910.119(b); 1910.119(j)(1); 1910.180(d); 1910.269; 1910.269(a)(1); 1910.269(a)(1)(iii); 1910.269(p)(1)(i)|
January 31, 2008
Mr. Howard J. Feldman
Director, Regulatory Analysis and Scientific Affairs
American Petroleum Institute
1220 L Street, NW
Washington, DC 20005-4070
Dear Mr. Feldman:
Thank you for your May 12, 2004 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). Our response is based on information you provided in your letter, and information individuals representing your organization and other representatives from Synergy presented in a meeting with members of my staff, attorneys from the Department of Labor Solicitors Office, representatives from the U.S. Environmental Protection Agency, and me on May 17, 2004 in our building. You have issues regarding OSHA's Process Safety Management of Highly Hazardous Chemicals; Explosives and Blasting Agents Standard (PSM), 29 CFR 1910.119. Please be aware that this response may not be applicable to any question or situation not delineated within your original correspondence. Your specific issues are related to the application of OSHA's requirements for utility systems as they relate to the prevention and mitigation of releases of highly hazardous chemicals from PSM-covered processes and whether OSHA's standard 29 CFR 1910.269, Electrical Power Generation, Transmission and Distribution, preempts the PSM standard for power generation facilities that serve covered processes.
Issue 1 PSM Coverage of Utility Systems
From your incoming letter, issue paper, and attachments, the following scenario summarizes the information you have provided in your request to have OSHA clarify guidance that utility systems are not covered by PSM.
Scenario: Plant utility systems such as steam, nitrogen, electricity, plant air, and process water are used to operate refinery equipment and processes that may be covered by OSHA's PSM standard. You stated that API believes that:
Areas of Agreement Related to Utility Systems and Their Relationship to PSM
We agree with you and your representatives on the following points related to utility systems and their relationship to PSM:
As you mentioned, plant utility systems are used to operate chemical processes. Plant operation, of course, not only includes production considerations, but also involves safety. In fact, many parts or aspects of the PSM-covered process are important for preventing and mitigating catastrophic releases. These parts or aspects include:
OSHA does not agree that utility systems are categorically outside the scope and application of the PSM standard. It is OSHA's long-standing position that utility systems are part of the PSM-covered process when employers use them to control/prevent and mitigate catastrophic releases of HHC.
A process is defined in 29 CFR 1910.119(b) as any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals, or a combination of these activities (emphasis added). In the preamble to the final rule, OSHA noted, specifically, that the standard, as written, reflects the intent of the Clean Air Act Amendments, which requires the standard to be designed to protect employees from hazards associated with accidental releases of highly hazardous chemicals in the workplace. 57 FR 6356, 6372 (February 24, 1992). As such, the proper safe functioning of all aspects of a process, whether they contain HHC or not, are important for the prevention and mitigation of catastrophic releases of HHC, due to their direct involvement in the overall functioning of the process.
As a result, it is OSHA's position that if an employer determines that a utility system or any aspect or part of a process which does not contain an HHC but can affect or cause a release of HHC or interfere in the mitigation of the consequences of a release, then, relevant elements of PSM could apply to these aspects. OSHA's position is that any engineering control, including utility systems, which meets the above criteria must be, at a minimum, evaluated, designed, installed, operated (training and procedures), changed, and inspected/tested/maintained4 per OSHA PSM requirements.
If an employer determines, through a PHA, that a component failure of a utility system can no longer affect or cause a release of HHC or interfere in the mitigation of the consequences of the release, then, the utility system, at that point, would no longer be considered part of the covered process. If an employer makes this determination, then, the employer must be able to proactively demonstrate why the utility system is no longer part of the covered process.
If the employer takes credit for other credible safeguards in the process, which will prevent and mitigate a release of an HHC in lieu of the subject utility system, then, they must assure that those safeguards are adequate. For example, an employer determines, through its PHA, that its electrical utility system needs to be relied upon for the safe operation of their covered process. In response, the employer determines that an uninterruptible power supply (UPS) would be a safeguard against the loss of electrical utility to the process equipment. With respect to this example, one scenario the employer would need to account for would be the need to assure that the on-site electrical distribution system, from the main power supply and the UPS, would not be compromised by an explosion or some other reason. In this case, if the electrical utility cannot function to safely operate the process because the electrical distribution system is compromised, the UPS safeguard would not be a credible safeguard for the process. Again, for aspects which do not contain HHCs, OSHA expects those other credited safeguards would, at a minimum, be evaluated, designed, installed, operated (training and procedures), changed, and inspected/tested/maintained per OSHA PSM requirements.
In your incoming document package, you asked us to withdraw an interpretation letter5 on the matter of PSM coverage of utilities. We are not withdrawing this interpretation letter because we believe it accurately reflects our long-standing enforcement policy as discussed above. To reiterate, OSHA's position regarding PSM coverage of utility systems is as follows: Based on the employer's analysis, utility systems may be subject to various elements of PSM to the point where a failure in a component of the utility system can no longer affect a potential release of a covered chemical. It is OSHA's view that utility systems that are part of the covered process need to be, at a minimum, depending on the circumstances of the process in question, evaluated, designed, installed, operated (training and procedures), changed, and inspected/tested/maintained per OSHA PSM requirements.
Issue 2 Preemption of the PSM Standard by OSHA's 1910.269 Standard
Scenario: Based on API's analysis, you believe that OSHA's 1910.269 standard, Electric Power Generation, Transmission, and Distribution, preempts the application of the PSM standard to electrical utility systems at facilities with PSM-covered processes. The bases of your preemption conclusion are that:
This section applies in addition to all other applicable standards contained in this Part 1910. Specific references in this section to other sections of Part 1910 are provided for emphasis only.Further, OSHA explained in the preamble to the 1910.269 standard that other Part 1910 standards (e.g., 1910.119 PSM) are not preempted by 1910.269, unless an exception is given in 1910.269:
Paragraph (a)(1)(iii) of final 1910.269 explains the application of the section with respect to thev rest of part 1910. All other General Industry Standards continue to apply to installations covered by this new standard unless an exception is given in 1910.269. For example, 1910.269(p)(1)(i) requires the critical components of mechanical elevating and rotating equipment to be inspected before each shift. This provision does not supersede existing 1910.180(d), which details specific requirements for the inspection of cranes. References in 1910.269 to other sections of part 1910 are provided only for emphasis.59 FR 4320, 4341 (Jan. 31, 1994)
As you stated, the application of the 1910.269 standard is for the operation and maintenance of electric power generation, control, transformation, transmission, and distribution lines and equipment. The purpose and application of the PSM standard is to prevent and mitigate catastrophic releases of HHC, which include fire/explosion hazards, toxic hazards, reactive hazards, and explosive hazards. As stated in Response 1, utility systems, including electrical utility systems can be part of a covered process. As such, they are one component part of a holistic safety system for a PSM-covered process and relevant provisions of both 1910.119 and 1910.269 are applicable. Indeed, this result is necessary to protect employee safety. The application of 1910.269 procedures alone would not adequately prevent and mitigate the release of HHCs and their associated hazards fire/explosion due to the release of flammable materials and toxic, reactive, and explosive material hazards that are subject to PSM provisions. Additionally, 1910.269 does not address the hazards associated with PSM-covered processes in a holistic manner, as is required by the management systems elements of the PSM standard.
Therefore, given OSHA's intent, as explicitly stated in the 1910.269 standard and preamble, and the differing hazards and requirements to assure safe operations, the 1910.269 standard does not preempt application of the PSM standard.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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 may consult OSHA's website at http://www.osha.gov If you have any further questions, please feel free to contact the OSHA Office of General Industry Enforcement at (202) 693-1850.
Richard E. Fairfax, Director
Directorate of Enforcement Programs
1 1910.119(a)(1)(i) This section applies to the following A process which involves a chemical at or above the specified threshold quantities listed in Appendix A to this section; [ back to text ]
2 1910.119(a)(1)(ii) A process which involves a flammable liquid or gas (as defined in 1910.1200(c) of this part) on site in one location, in a quantity of 10,000 pounds (4535.9 kg) or more. . . [ back to text ]
3 1910.119(b) "Process" means any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals, or combination of these activities. For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process. [ back to text ]
4 OSHA stated in the PSM preamble [FR Vol. 57, No. 36, pg. 6389] that other equipment (i.e., aspects), than that equipment identified in 1910.119(j)(1) might be critical to the safety of the process, It is the position of OSHA that at least the equipment specified in proposed paragraph (j)(1) must be subject to the requirements contained in paragraph (j). However, if an employer deems additional equipment to be critical to a particular process, that employer should consider that equipment to be covered by this paragraph and treat it accordingly. [ back to text ]
5 OSHA Interpretation Letter to James B. Evans, Union Carbide, The term "interconnection" as it would apply to utilities, steam and electric, used in a covered process. 9/14/95, [http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21932] [ back to text ]
Standard Interpretations - Table of Contents|