3/20/2014

OSHA PSM Citation Summary

AcuSafe Home Page -> October 2001 Newsletter

OSHA Interpretations: The Meer Decision

Most of the letters of interpretation issued by OSHA over the years have dealt with PSM applicability issues. This newsletter will focus on an important PSM applicability issue that arose during an OSHA PSM inspection of the Meer Corporation facility in North Bergen, NJ in January1995. Secretary of Labor vs. Meer Corporation OSHA issued citations to Meer Corporation for not including tanks storing flammable materials stored at atmospheric pressure in their PSM program because the tanks were connected to blending vessels. OSHA had long contended in its interpretations of the PSM Standard that such interconnection resulted in the atmospheric storage tanks being part of a process as defined in paragraph b) of the Standard. Meer appealed the citations, and when the Occupational Safety and Health Review Commission (OSHRC) issued its final order in May 1997, the administrative law judge ruled that the OSHA failed to prove that Meer's flammable material storage tanks were connected to a process within the definition of a process in the PSM Standard. The ruling also extended beyond Meer by stating that the definition of a process in the Standard was unconstitutional because it is vague and does not give a facility the necessary information on whether it is required to comply. The ruling went on to say that OSHA's interpretation of a process with respect to the interconnectivity of tanks containing flammable materials stored at atmospheric pressure were improper. In order to require coverage of such tanks, OSHA must amend the PSM Standard itself and cannot "stretch" the meaning the regulation on this issue by interpretation. Interpretations must be supported by the language of the regulations they seek to clarify, and in this case, the vague wording of the definition of a process in the PSM Standard precluded such wide interpretation. Although OSHA disagreed with the OSHRC's ruling, it issued an internal memo on May 12, 1997 that stated it would not issue PSM citations when coverage of a process under PSM is based partly or solely on flammable materials stored in connected atmospheric storage tanks that meet all of the requirements for an exemption. That is, as long as the storage tank that is being exempted is operated at conditions of pressure and active cooling that are defined in paragraph b) of the Standard (pressure of 0.5 psig or less and material kept below its boiling point without chilling or refrigeration), then its contents will not be used to determine whether a threshold quantity of flammable materials has been reached. However, the memo also noted that the General Duty Clause could still be used to issue citations where exempted tanks contributed to a risk to workers. OSHA also announced at the time that it intended to amend the language of the PSM Standard to correct the vagueness noted by the OSHRC and incorporate it's
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OSHA PSM Citation Summary

original interpretations regarding the coverage of atmospheric storage tanks containing flammables that are connected to otherwise covered processes. The Advanced Notice of Proposed Rulemaking (ANPR) covering this amendment, as well as other proposed changes to the PSM Standard, is expected by the end of 2001. Therefore, facilities with interconnected atmospheric storage tanks containing flammable materials that included these tanks in their PSM programs based on OSHA's original interpretations should not exclude them due to the Meer decision. Although any amendments to the PSM Standard must go through an exhaustive hearing and public comments period, it is very possible that the PSM Standard itself will require the coverage of such tanks in the near future. The practical effect of the Meer decision was to delay any citations for not covering these tanks. To go back to the OSHA Interpretations Feature Index, click here. Go to AcuSafe.
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