Occupational Safety and Health Administration (OSHA), Labor.
Interpretation.
This Notice constitutes the Occupational Safety and Health Administration's official interpretation and explanation of the phrase “on site in one location” in the “Application” section of OSHA's Process Safety Management of Highly Hazardous Chemicals standard. (“PSM”).
For general information contact: Kevin Ropp, Director, Office of Communications, U.S. Department of Labor, Occupational Safety and Health Administration, Room N–3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693–1999; fax (202) 693–1635. For technical information contact: Mike Marshall, PSM Coordinator, Directorate of Enforcement Programs, U.S. Department of Labor, Occupational Safety and Health Administration, Room N–3119, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693–1850; fax (202) 693–1681.
This
The meaning of “on site in one location” was at issue in a recent case before the Occupational Safety and Health Review Commission.
The PSM standard provides, in pertinent part:
(a)
(i) A process which involves a chemical at or above the specified threshold quantities listed in appendix A to this section;
(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 * * * .,
* * *a substance possessing toxic, reactive, flammable, or explosive properties and specified by paragraph (a)(1) of this section.
In providing this Notice's clarification of the intended coverage of the standard, OSHA has determined that, considering the history, language, structure and purposes of the PSM standard, it is abundantly clear that there is considerable overlap between the term “on site in one location” and the definition of “process” adopted in the final version of the standard. In addition, “on site in one location” serves the independent function of excluding coverage where the HHC threshold would be met only if all amounts in interconnected or proximate vessels or pipes were aggregated but some of the amounts needed to meet the threshold quantity are outside the perimeter of the employer's facility. For example, trucks and pipelines outside the boundaries of the employer's property, which may be regulated by the Department of Transportation in any event, are excluded.
In response to several major disasters in both the United States and abroad, OSHA began to develop a comprehensive standard addressing hazards related to releases of HHCs in the workplace. On July 17, 1990, OSHA published a Notice of Proposed Rulemaking (NPRM) at 55 FR 29150. Approximately four months later (November 15, 1990), Section 304 of the Clean Air Act Amendments (CAAA) of 1990, Public Law 101–549, required the Secretary of Labor, in coordination with the Administrator of the Environmental Protection Agency, to promulgate, pursuant to the Occupational Safety and Health Act of 1970, a chemical process safety standard to prevent accidental releases of hazardous chemicals that could pose a threat to employees. The Act also directed EPA to issue a rule addressing the hazards to the public of releases of such chemicals into the atmosphere and to coordinate the provisions with comparable OSHA requirements, (42 U.S.C. 7412(r)(7)).
The NPRM's scope and application section included the following statement of the standard's intended application:
(b)
(i) Processes* * *
(ii) Processes which involve flammable liquids or gases (as defined in § 1910.1200(c) of this part) onsite in one location in quantities of 10,000 lbs or more* * *,
Under the proposal the term “process” would be defined as:
* * *any activity conducted by an employer that involves a highly hazardous chemical including any use, storage, manufacturing, handling, or movement of a highly hazardous chemical, or a combination of these activities.
Thus, the NPRM applied to processes in the plural, and the definition of “process” did not include any language indicating a geographic limit to what constituted a covered “activity.” The subsection on application to flammable liquids and gases included “on site in one location,” without explaining the phrase. The subsection on application to listed hazardous chemicals lacked any parallel language.
In response to the NPRM, OSHA received over 175 written comments. OSHA's review of the comments revealed a significant issue of how TQs of HHCs were to be calculated. Because OSHA had used the plural term “processes” in the NPRM, which could suggest multiple processes in separate locations, some stakeholders expressed concern as to whether OSHA intended TQs be calculated by an aggregate of all HHC present at an employer's facility, or by the amount of an HHC present in one particular process. (
Recognizing this confusion, OSHA, in a
OSHA did not intend that facilities aggregate quantities of covered chemicals. The important factor is the amount of a listed chemical in a plant that could be released at one point in time. If the total amount of a listed chemical in a plant exceeds its threshold quantity of 1000 pounds, for example,
In addition, during the rulemaking, commenters noted that HHCs concentrated in a single interconnected process should be subject to the requirements of the PSM standard, (Ex. 3–165, 3–166). The concept of interconnectedness was integral to American Petroleum Institute (API) 750,
1.4.4 A
1.4.5
On February 24, 1992, OSHA promulgated the final PSM standard, (57 FR 6356). With respect to TQ calculations, OSHA again reiterated its November 1, 1990 statement of intent, noting that it “continues to believe that the potential of a catastrophic release exists when a highly hazardous chemical is concentrated in a process.” OSHA also stated that it “agrees with those commenters” who argued that “highly hazardous chemicals in less than threshold quantities distributed in several processes would not present as great a risk of catastrophe as the threshold quantity in a single process.” (57 FR 6364).
To reflect its agreement with the commenters and API 750 on this point, OSHA modified the definition of “process” in the final rule. First, the “Application” provision was stated in terms of a “process” rather than “processes.” Next, as set forth above, the final standard augmented the NPRM's definition of “process” by adding language to clarify that “interconnected and nearby vessels containing a highly hazardous chemical would be considered part of the single
The regulatory history establishes several key points. First, OSHA intended “process” to be the central term elucidating the standard's coverage. Second, employers need not aggregate all amounts of a chemical in an entire facility to determine whether a threshold quantity is present. Instead, only amounts in a group of vessels that are interconnected, or in vessels that are separate but sufficiently close together that they could be involved in the same release, are to be aggregated. Finally, the agency intended no distinction in the application of these principles between listed chemicals subject to 29 CFR 1910.119(a)(i) and flammables subject to 29 CFR 1910.119(a)(ii).
In addition to directing OSHA to develop the PSM standard, Congress directed EPA to address the hazards of catastrophic releases of highly hazardous chemicals to the atmosphere, (42 U.S.C. 7412(r)). EPA issued its rule on June 20, 1996, following promulgation of OSHA's PSM standard, (61 FR 31667). While the definition of “process” in the EPA-prescribed RMP is identical to the PSM definition, RMP does not use the term “on site in one location”. Instead, RMP uses the term “stationary source,” which is defined, in relevant part, as “any buildings, structures, equipment, installations, or substance emitting stationary activities which belong to the same industrial group, which are located on one or more contiguous properties, which are under the control of the same person (or persons under common control), and from which an accidental release may occur.” (40 CFR 68.3). This is the same definition used by Congress. (42 U.S.C.A 7412(r)(2)(c)).
As noted above, the Secretary construes the phrase “on site in one location” to refer to contiguous areas under the control of an employer, or group of affiliated employers, and, within that area to a group of vessels that are interconnected, or separate but sufficiently near each other that they could be involved in a catastrophic release. This interpretation accords with the ordinary dictionary meanings of “site” and “location” and with the context of the entire application provision and the related regulatory definitions for “process” and “highly hazardous chemical.” In interpreting the phrase, moreover, the Secretary has concluded that to give meaning to all the words of the standard, a certain degree of redundancy is inevitable; and that it would not be faithful to the drafters' intent or the purposes of the standard to construe “on site in one location” as completely separate from the definition of “process,” since the result would be to read part of the “process” definition out of the standard altogether. In so concluding, the Secretary notes that the overlap of “process” with “on site in one location” parallels a similar overlap with “highly hazardous chemical,” as the latter term appears both in the “process” definition and in the language of the application provision and its definition includes a reference back to the application provision. Thus, the standard applies to a process, a process is an activity involving a highly hazardous chemical, and a highly hazardous chemical is, inter alia, a chemical that is specified by the standard's application provision, 29 CFR 1910.119(a), (b). But, despite this evident circularity, nobody has ever objected to that overlap. Similarly, there is unavoidable overlap between “on site in one location” and the portions of the process definition that refer to interconnection and location.
The interpretation provided here is consistent with the ordinary dictionary meaning of “on site in one location.” The dictionary defines “site” to mean, primarily, “the position or location of a town, building, etc., esp. as to its environment.”
This intent may be further discerned from consideration of relevant regulatory history. CAAA Section 304 directed the Secretary, in coordination with EPA, to promulgate a chemical process safety standard designed to protect employees from hazards associated with accidental releases of HHCs in the workplace. Although EPA's RMP Rule at 40 CFR part 68
This construction also comports with the regulatory history on aggregating the TQs of HHCs. As noted in the comments of stakeholders, “on site in one location” could not be naturally read with the plural term “processes” in proposed § 1910.119(b)(1)(ii). A large facility can have separate processes at different locations within its boundaries, a point raised by Allied Signal in its comments (Ex. 3–17). The American Paper Institute similarly commented that “a significant concern for us is that the proposed rule is unclear as to how an employer can determine when the rule would apply to a particular facility handling chemicals at different locations of that facility.” (Tr. 1112).
Not only did the stakeholders point out that the NPRM's scope and application section was inconsistent with the proposed definition of “process,” OSHA itself recognized the issue and took the unusual step of clarifying its intent in an interim proposal document. By stating that a chemical used in small quantities around the plant and not concentrated in one process or in one area would be unlikely to cause a catastrophic release, OSHA clearly sought to limit coverage of the PSM standard to situations where a TQ of an HHC was concentrated in a single, including an interconnected, process. Despite the inexact use of the plural “processes” in the NPRM, it was never the agency's intent to cover HHCs sufficiently dispersed in various locations on a large site, and in more than one process, such that their release from any one process would not cause the type of catastrophic harm that this standard was aimed to prevent. The use of “on site in one location” in the provision regarding flammables was intended to signal that employers would not need to aggregate all sources of the chemical facility-wide, or those outside the bounds of the employers' facility, although the provision did not clearly describe the agency's intent regarding which sources should be aggregated.
The hearing transcripts and written comments confirm that members of the refinery industry, an industry with a particular interest in OSHA's regulation of flammable liquids and gases, understood and accepted OSHA's clarified position. For instance, Shell Oil Company testified that it “strongly supports OSHA's position that owners should not aggregate quantities of chemicals at separate locations across a facility to determine if threshold quantities have been reached”, (Tr. 2591). BP testified that “if flammables are over 10,000 pounds in process, the rule applies to that process”, (Tr. 3038). Amoco Corporation agreed that “OSHA clarified that the threshold quantities of highly hazardous chemicals are determined on process basis, rather than by aggregating quantities of like chemicals for an entire facility”, (Ex. 3–165). Union Carbide similarly stated its understanding that “all of the thresholds be calculated on a ‘per process’ basis”, (Ex. 3–109).
OSHA reiterated this position in the final rule, stating that it “continues to believe that the potential hazard of a catastrophic release exists when the highly hazardous chemical is concentrated in a single process”, (57 FR 6364). This was in agreement with those stakeholders who argued that TQs should not be aggregated over an entire facility, (e.g., Tr. 2591, 3192; Exs. 3–163, 3–164). OSHA's final position was that PSM coverage could only be found if a TQ of an HHC exists in a single process.
To the extent “on site in one location” did not adequately convey that intent, the more precise revision of the definition of “process” as a result of the record comments did so by clarifying that the standard's scope was meant to apply to an area more confined than multiple processes, but more expansive than a single process point, where the process involves inter-connecting vessels or pipes, or vessels in close proximity such that the release of an HHC in one could trigger a chain reaction in the others. Accordingly, OSHA modified the definition of “process” to include the concepts of “interconnection” and “co-location” with addition of the language, “any group of vessels which are interconnected or separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process.” 29 CFR 1910.119(b). OSHA stated in the final rule that this definition, when read in conjunction with the application section, establishes the standard's intended coverage, (57 FR 6372). Therefore, a “single process” containing a TQ of an HHC includes an “interconnected” or closely co-located process.
Construing “on site in one location” in tandem with the final, expanded definition of “process” also serves OSHA's intended purposes. First, the full definition of “process” makes clear that it was not OSHA's intent that it would be required to prove that a release of an HHC in one component of an interconnected process could affect a release in other components of the same interconnected process in order for the PSM standard to apply. Rather, the intent of OSHA and the understanding of the stakeholders were to the contrary, as the rulemaking record indicates. For example, AT&T recommended that OSHA define threshold quantity as “the maximum amount in pounds in a process (or connected processes)”, (Ex. 3–126). Asarco, in its comments, suggested that an interconnected process should be covered by the PSM standard. (Ex. 3–125). API, the leading trade organization of the refinery industry, included the concept of interconnection in its Recommended Practice 750. As described
The presence of the word “or” between interconnected and co-located vessels in the final rule demonstrates that two potential avenues exist to find a covered process when several aspects may be involved in the overall process. The plain language of the definition establishes two distinct burdens of proof when considering the applicability of PSM to an interconnected or a co-located process. With respect to a co-located process, OSHA would be required to demonstrate as part of its
Second, it is clear that, in revising the “process” definition to encompass the “on-site movement” of HHCs and the twin concepts of inter-connectedness and co-location, OSHA intended that definition to bear most of the weight of defining the scope of the standard. As originally drafted, the “process” definition not only did not have these clarifications, but “onsite in one location” appeared only in the subsection on flammable liquids and gases, and not in the subsection on Appendix A toxic substances. There is no obvious explanation why this was so. As noted, the phrase was intended to signal that it was not necessary to aggregate all sources of a chemical within, or beyond, the employer's facility. The final standard clarified and more precisely stated this intent and made clear that the same principles applied to both listed and flammable chemicals.
The phrase in the final standard continues to carry its original NPRM meaning of setting a geographic boundary (“on site”) and, within that boundary, a site-specific parameter (“in one location”). But after the definition of “process” was changed in the final rule to include explicit language clarifying that a “single process” includes “any group of vessels which are interconnected or separate vessels which are located such that a highly hazardous chemical could be involved in a potential release,” the limitation placed on application of the standard to flammable liquids and gases denoted by the related phrase “on site in one location” no longer carries the independent weight it had before OSHA clarified the intended meaning of “process.” As previously stated, however, it continues to serve a separate purpose by operating to exclude coverage where the HHC threshold would be met only if all amounts in interconnected or co-located vessels were aggregated but some of the amounts needed to meet the threshold quantity are outside of the perimeter of the employer's facility.
In the Motiva decision, the Review Commission appropriately left to the Secretary the task of interpreting “on site in one location” as it appears in the PSM standard, rather than doing so as an initial matter on its own. This Notice accomplishes that function. The interpretation set forth here is supported by the language, history and purposes of the standard and is consistent with the position adopted by EPA. In the absence of an agency interpretation, the Review Commission had focused on another guide to regulatory intent, the canon of construction that says that all the words of a statute (or regulation) should be assumed to have their own meaning, and suggested that “on site in one location” therefore has a meaning wholly apart from process. Regardless of the strength of this canon, the Secretary has satisfied it here by interpreting “on site in one location” to limit coverage to vessels within contiguous areas controlled by an employer or group of affiliated employers.
More fundamentally, the Secretary agrees that canons of construction can be useful guides to regulatory intent. They are guides only, however, and should not be mechanically applied in the face of stronger indicia of intent. The flip side of the canon referred to above is the rule that the words of a standard (or regulation) should not be given meaning at the expense of rendering other words meaningless. Accordingly, the courts have put aside the general rule against redundancy in statutes if applying the rule would be counter to legislative intent.
Moreover, it is simply linguistically inescapable that there is overlap and redundancy among the terms of the standard.
This document was prepared under the direction of Edwin G. Foulke, Jr., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210.