‘Search [Ato ZIndex [En Espafol [Contact Us FAQS ‘About OSHA OSHA Newsletter RSS Feeds Menu Occupational Safety & Health Administration We Can Help (@ StondardIntrretations - Tate of Contents ‘* Standard Number: 1910119 (OSHA requirements are set by statute, standards and regulations. Our interpretation eters explain these requirements and how they apply to particular Ccrcumstances, but they cannot create adtional employer obligations. Ths eter constitutes OSHA's interpretation of the requirements cscussed, Note that our enforcement guidance may be aflected by changes to OSHA rules, Also, fram me to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at hto://marw.osha.gov sune 5, 2015 MEMORANDUM FOR: REGIONAL ADMINISTRATORS AND STATE PLAN DESIGNEES -ruroucH: DOROTHY DOUGHERTY Deputy Assistant Secretary “THOMAS GALASSI Director FROM: Directorate of Enforcement Programs Process Safely Management of Highly Hazardous Chemicals suBDECT: ‘and Covered Concentrations of Usted Appencix A Chemicals “This memorandum revises OSHA's enforcement policy on the concentration of a chemical that must be present in a process forthe purpose of determining wether the chemical is ator above the threshold quant sted in Aopendix A of the Process Safty Management of High¥ Hazardous Chemicals (PSM) standard (29 C.F. § 1910.118). The revision is in accordance withthe Presiden’s August 1, 2013, Execute Order 13680, Improving Chemical Facty Safety and Security, OSHA's Current Enforcement Policy: Maximum Commercial Grade “The PSM standard apples to, among other things, “a pracess which involves @ chemical at or above the specified threshald quantites listed in Appendix Ato this section.” 29 C.F.R, § 1910.119(2)(2Xi). Appendix A liss 137 chemicals and gives the threshold quantty in pounds for each one, For 11 of te 137 chemicals, a ‘minimum concentration is listed along withthe chemical rame.+ The remaining 126 chemicals are listed without reference to any concentration. This has Created an fsue whether the threstald quanttes for Appendix A chemicals without Isted concentrations apply ony tothe chemicals in their undited (pure) form, orto mires in which the chemicals are present at some concentration, Neither te regulatory text nor regulatory history contains guidance on tis ‘question, Fllowing the 1991 publication ofthe PSM Final Rule, OSHA issued a series of letters of interpretation and compliance drectves on ths subject. OSHAYS intial poston, stated in letters issued in 1992 and Apri, 1993, was that the threshold cuantties in Appendix A epply only to pure (or ‘chemical grade’) chemicals Unless otherwise stated inthe appencix.”? But in another letter isued in June 1993, OSHA appeared to mosify ts poston stating ‘The substances listed in Appendix A without specied concentration limits ae intended to be covered by the PSM Standard at commercial grade percentages of purty because the commercial grade of most ofthe [highly hazardous chemicals] HHC's is apprenimately 99 percent purity, Many ofthe HHC's,ifrot actually at 99% purity, ae only one to two percent less than 99 percent pure. For example, the commercial grades of acrolein and aly chloride are 97 percent purity. Some ofthese HHC's are considerably less than 9 percent pure, For example, the commercial rade of hydrogen Nuorde is 70 percent (30% is pyridine)? In 1954, OSHA further refined its policy, stating thatthe chemicals Isted in Append A without minimum concentrations are covered at "commercial grade” concentrations and higher. The leter defined “commercial grade” as a typical maximum concentration ofthe chemical that ls commercially available and shipped.” OSHA also noted that an employer could determine the maximum commercial concentration by refering to any published catalog of chemicals for commercial sales. “OSHA PSM complance directives issue¢ during this period contain similar statements describing the agency policy. (OSHN's policy asset forth in these letters of interpretation is ambiguous on several key issues. First, it snot ear whether the threshold quantty ofa chemical ‘without a specified concentration must be accounted for under the standard if the commercial grade concentraton is significanly less than 99 percent or the chemical s used in the prooess at a concentration thats greater or leer then maximum commercial grade concentration. Second, iis not dear whether the thresholé quantity of @ chemical in @ moaure (2.9, a solution containing the chemical and @ solvent) Indudes only the weight ofthe chemical or induces the eight ofthe mature as a whole“These and atherinconsstences in OSHR'spalcy led to the dismissal ofa criminal indictment ina case involving a 1999 explosion at Concept Sciences Ine. in ‘Alertown, Pennsyhvenia, U.S. v. Ward, No, Crm, 00-663, 2001 WL 1160168, at*13-*17 (ED. Pa, Sept. 5, 2001). The case imoled the PSM standard’s ‘overage of process using a soltion of rydroxyamine ata concentration of 86.5 percent. The maximum commercial grace concentration of hyérotyamine is 50 percent. The quanlty of hyéroxylamine inthe process exceeded the threshold quantity in Appendix A only ifthe weight of the water in the hydroxylamine soluton wes included. The dst court found that Concept Scences' president, Chip Ward, lacked reasonable notice thatthe standard applied to the process because OSHA's interpretive guidance was ambiguous a tothe concentration level at and above which Hycroaylamine is covered, Td, at9-12, The court noted that the June 22, 193 interpretive lelter could be read to mean that a pracessimvoling an Appendix A chemicel without a specfied concentration is covered by the standard only if the chemical concentration Is near 99 percent pusy, 1d. at 12, The court also found that that OSHA's interpretation letters were unclear Wiener the threshold quantty of a chemical in solution includes the weight ofthe solvent, Ic, at 14-17, Asa result ofthis lack of dart, the court found that the standard could not be enforced against Ware in these craumstances. OSHA's Reconsideration of the Maximum Commercial Gra Policy Pursuant to £.0. 13650, OSHA undertook a crtcal review ofits commercial grade policy to identity necessary changes. OSHA was concerned not cnly with clarifying the poly, but also assuring its consistency with the protecive purposes of the standard. In partcular, OSHA was concerned thatthe policy does nat adequately account forthe potental thatthe chemicals listed in Appendix A without specifed concentrations may retain their hazardous characteristics even at relatively low concentrations. In adressing this question, OSHA considered the Environmental Protection Agency (EPR) experience in implementing provisions of the Clean Air Act ‘Amendments of 1990 (CAAA) relating tothe public heath and ervronmental impacts of releases of hazardous chemicals. The CAAA recuired EPA to develop a Ist of substances that would Ikely be hazardous tothe publ or the erwonment released, and promulgate regulations and guidance on the prevention and mitigation of such releases. Pursuant to notice and comment procedures, EPA promulgated a List of Regulated Toxic Substances and Threshold Quant for Accidental Release Prevertion, 59 Fed, Reg, 4478-01 (January 31, 1994), EPA has als issued regulations requiring that ceguate entities develop and submit Risk Management Pars (RMPs) which must include a hazard assessment, a prevention program, and an emergency response program. In promulgating the rule, EPA addressed the conceniation at which a dilute solution ofa substance may pose a hazard sufficient to require a determination whether a threshold quartiy is present in a process, 59 Fed Reg, 4488, EPA concluced that, fora few chemicals, it could determine speci cu-o concentrations below which the chemicals need net be considered in determining whether a threshold cuanttyis present. The remaining substances, EPA found, could reasonably be Considered to be hazardous in concentrations ator above one percent if present ina process atthe threshold quantity, unless the partial pressure ofthe substance was less than 10 milimeters of mercury (10 mm Hg.) Ibid, Accordingly, the EPA rue includes a provision requiring that fisted substance with no specified cut-of concentration is present ina mixture ata concentration of one percent or greater by weight, the threshold quantity of the suastance must be determined uniess the owner or operator can demonstrate that the partial pressure of the substance under allcndtions in the process is below 10 mm Hg. 40 CAR, 68.115 (0X1), OSHA believes thatthe one percent concentration cut-off established in the EPA rule is the appropriate policy onthe concentration of an Appendix A chemical that must be present ina mitre before the threshold quantity ofthe chemical must be determined. Bath the PSM standard and EPA’s Rsk Management Program are intended to prevent, or ameliorate the effects of, catastrophic releases of hazardous chemicals, EPA's conclusion, following notce and comment, that even one percent solutions of regulated substances may reasonably be ancipated to cause effets of concern in an accidental release is highly relevant. The current maxmum commercial grade palcy provides no clear threshold above which a chemical mbaure is covered, and could permit dangerous concentrations of hazardous Chemicals in miures to be exempted from PSM coverage, The commercial grade approach Is also confusing for employer attempting to apply the standard, To determine the commercial grade for an Append A bsted chemical, employers must determine the mayimum concentration at which the listed chemical is commercialy evallable fr industrial use, Although this can be done with catalogs or by contacting chemical suppliers, undertaking such @ process canbe cfu because it requires employers: 1) to know and understand the entirety of the supaly chain fr a particular HC and (2) to make a determination as tothe maximum commerdial grade without @ means of verifying whether the determination is correct OSHA's New Enforcement Policy: the One Percent Test “To beter adress the hazards associated with mistures of Appendix A HHCs, OSHA hereby rescnds al prior policy documents, letes of interpretation, and ‘memoranda related tothe maximum commercial grade or pure (chemical) grade policy in favor ofa ane percent test similar to that adopted by EPA, The new enforcement polis as folows: n determining whether a process involves a chemical (whether pure or ina mixture) a or above the speciid threshold quantities listed in ‘Appendix, the employer shall calculate: (2) the total weight of any chemical inthe process ata concentration that meets or exceeds the concentration listed for that chemical in Appendix, and (©) with respect to chemicals for which no concentration is specified in Appendix A, the total weight of the chemical inthe process ata concentration of one percent or greater. However, the employer need not include the weight of such chemicals in any porton of the process in ‘which the partial pressure ofthe chemical the vapor space under handling or storage contons isles than 10 milimeters of mercury (mm Hg). The employer shal document this partial pressure determination. In determining the weight ofa chemical present ina mixture, only the weight ofthe chemical itself, exdusive of any solvent, solution, or carrier's counted. A few examples lustrate the new pole” application, If pracessinvalves a 2000-pound mixture of 50 percent chloraplcrin by weght and an appropriate solvent, the folowing formula determines coverage: Weight x [concentration] = amount of highty hazardous chemical 2000 pounds x 50 percent = 1000 pounds chloropirin 1000 pounds exceeds the SO0-pound threshold quantity in Appendix A For a chemical with a listed concentration, the same formula applies. For example, if process involves 810,000 pound minaure of 70 percent lacey peroxide and an appropriate solvent, the caluaton is 2 follows‘Weight x [concentration] = amount of highly hazardous chemical 10000 pounds x70 percent = 7000 pounds of ciacetl peroxide 7000 pounds exceeds the 5000-paund thresholé quantity. ‘ut in contrast, 5000 pounds of 70 percent acetyl peroxide isnot covered! Weight x [concentration] = amount of highty hazardous chemical 5000 pounds x 70 percent = 3500 pounds of diacetyl peroxide 3500 pounds i less then the 5000-pound threshold quantity ‘Appendix ofthis memorandum gives questions and answers to typical situations compliance officers may encounter in determining the concentration of an HC for PSM coverage. Appendix A (Question 1: A process comprises 100,000 pounds of a one percent hydrofluoric aid solution by weight. 1s the process covered by PSM? (OSHA Response: Yes. One percent by weight of 100,000 pounds is 1000 pounds of hydrofluoric acid in solution. The threshold quan ofhydrofuoric acid is 1000 pounds, therefore the process is covered under PSM (Question 2: A process comprises 10,000 pounds of 50 percent cacety peroxide solution. Ts the process covered by PSM? (OSHA Response: No. Diacety peroxide is specifically Isted in Appendoc A at concentrations greater than 70 percent. Therefore, solutons containing dacety perosede at less than 70 percent are not covered by PSM regardless ofthe aggregate amount of the highly hazardous chemical (Question 3: An employer shows that his process containing 11,000 pounds ofa three percent HHC solution has an HC partial pressure of ?mmHg. The threshold quantty ofthe HH is 100 pounds, Is the process covered by PSM? (OSHA Response: No. Although HHC is present ata concentration above one percent, and in a threshold quanty exceeding 100 pounds, the employer need not count the threshokd quantity because it has shown thatthe paral pressure ofthe chemical in the process is less than 10 mmHg. To calculate this, the employer ‘measures the vapor space pressure at 147 psia (760 mm¥g) and determines, through analysis, that HC makes up less than 0,9 percent ofthe mass ofthe vapor. Therefore, the HHC partial pressure is 760 mmHg x0.009 = 7 mmHg, (Question 4: & portion ofan interconnected process contains a miture with less than one percent ofthe covered HHC. Does tis mean that this portion ofthe process isnot covered under PSM? (OSHA Response: No, An interconnected proces is @ Sale process for purposes of coverage uncer PSM; iis either covered or not covered based on whether the weight of one or more HHCS in any porton ofthe process that meets or exceeds the threshold quantity (TQ) in Append A. In determining whether HHCs In any porton ofan interconnected process meet or exceed the TQ, the employer need not count any HH present in a moture at 2 concentration less than one percent by welaht. However, the employer must determine the total weight of any HEC ina mixture ata concenraton of one percent or greater inary portion ofthe process, and if te total weight meets or exceeds the TQ, the process, as a whole, is covered. Ine similar fashion, the EPA RMP rule addresses the same concept. At 40 CFR 68.115(b)1), EPA states thatthe coveree material in the portion ofthe process iere the pata pressure is less than 10 mig should not be counted towards the treshold quantity (Question 5: Four SS-gallon drums of 48 percent by weight aqueous hydrofuorc acid solution are stored in a warehouse ona single pale. Does a threshold quantity of hydrogen Rucride exist? (OSHA Response: At 1.15 g/ml, $5 gallons of solution weighs 527.85 pounds. Ata concenraton of 48 percent, the weight of HF in each crum Is 253.37 pounds. “The aggregate amount of HF, therefore, is 1013.5 pounds (253.37 pounds/drum x4 drums). The threshold quantity of HF is 1000 pounds, Because the storage ofthe four drums on a single pallets considered a single process, a treshold quantity of HF is present 1g, "Diacety Peroxice (Concentration > 70%)"; "Hydrogen Peroxide (52% by weight or greater.” Appendix A. 2 Letter of Interpretation to Shari Roney, April 14, 1993 (available at htp/ww. sha gov/pls/ashaweb/owadisp show document? _table=INTERPRETATIONS&p_1d=21081). See also Letter of interpretation to David L Walker, December 21, 1962 (avaliable at ip: //wosha.goupls/ostawedfowadisp show document?p_table=INTERPRETATIONSS9_Id=20963) 3 Letter of Inerpretaton to Fi Lambert, June 22, 1993 (avallale at htp://www.osha.gov/ls/oshawebjowadlsp show_document? table INTERPRETATIONSAp_id=21176), 4 Letter of Interpretation to David 8. Smith, March 21, 1984 (avaliable at htp://wwn.osha.gov/pls/oshawebjowadksp show_document? p-table=INTERPRETATIONSAp_id=21427); see also 25M Appiablty to 2 50% Soluton of Kyéroxyamine, April 30, 999 (avaiable at tp: /fwwaw osha. govplsfoshaweb/owadisp show document?p_table=INTERPRETATIONSSp id=22736) 5 See the 1992 and 1994 PSM compliance crectives (CPL 02-02-045) (avaliable at htp://wn.osha.govpls/oshaweb/owadisp.shaw._dooument? p-table=DIRECTIVES&p_id=1559 (1992) and hip: fiw osha.gov/plsfoshaweby/owadisp show_document?p_table=DIRECTIVESR_Id=1558 (1994) (@ Standard Intarretations - Tate of Contants Freedom of Information Act | Privacy & Security Statement | Disclaimers | Important Web Site Notices | Internatonal | Contact Us US Deparment of abor | Occupations Safety Healt Adninisation | 200 Corton Ave, NW, Washington 2 20219“elephan:800:321-0SH (6742) | TTY