[Federal Register: April 13, 2007 (Volume 72, Number 71)]
[Proposed Rules]
[Page 18791-18845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ap07-25]
[[Page 18791]]
-----------------------------------------------------------------------
Part III
Department of Labor
-----------------------------------------------------------------------
Occupational Safety and Health Administration
-----------------------------------------------------------------------
29 CFR Part 1910
Explosives; Proposed Rule
[[Page 18792]]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2007-0032 (formerly Docket No. OSHA-S031-2006-0665]
RIN 1218-AC09
Explosives
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: OSHA proposes to revise the explosives and blasting agents
standard in subpart H of part 1910. This revision of Sec. 1910.109 is
intended to enhance the protections provided to employees engaged in
the manufacture, storage, sale, transportation, handling, and use of
explosives. The proposal updates and clarifies the regulatory language,
addresses regulatory inconsistencies between OSHA and other Federal
agencies, incorporates updated consensus standards, and provides the
regulated community with greater compliance flexibility.
DATES: Written comments and hearing requests must be submitted by the
following dates:
Hard copy: Comments and hearing requests must be submitted
(postmarked or sent) by July 12, 2007.
Facsimile and electronic transmissions: Comments and hearing
requests must be sent by July 12, 2007.
ADDRESSES: You may submit comments, identified by Docket No. OSHA-2007-
0032, by any of the following methods:
Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions on-line for making
electronic submissions.
Fax: If your comments, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648.
Mail, hand delivery, express mail, messenger or courier service:
You must submit three copies of your comments and attachments to the
OSHA Docket Office, Docket No. OSHA-2007-0032, U.S. Department of
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Deliveries (hand, express mail, messenger and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m.-4:45 p.m., e.t.
Instructions: All submissions must include the Agency name and the
docket number for this rulemaking (Docket No. OSHA-2007-0032). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
http://www.regulations.gov. Therefore, OSHA cautions you about
submitting personal information such as social security numbers and
birthdates. For further information on submitting comments, plus
additional information on the rulemaking process, see the ``Public
Participation'' heading in the SUPPLEMENTARY INFORMATION section of
this document.
Docket: To read or download comments and materials submitted in
response to this Federal Register notice, go to Docket No. OSHA-2007-
0032 at http://www.regulations.gov or at the OSHA Docket Office at the address above. All comments and submissions are listed in the http://
http://www.regulations.gov index, however, some information (e.g., copyrighted
material) is not publicly available to read or download through that
Web page. All comments and submissions, including copyrighted material,
are available for inspection and copying at the OSHA Docket Office.
For information on accessing exhibits referenced in this Federal
Register notice, see the ``References and Exhibits'' and ``Public
Participation'' headings in the SUPPLEMENTARY INFORMATION section of
this document.
Electronic copies of this Federal Register document are available
at http://regulations.gov. Copies also are available from the OSHA
Office of Publications, Room N-3101, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-
1888. This document, as well as news releases and other relevant
information, also are available at OSHA's Web page at http://www.osha.gov
.
FOR FURTHER INFORMATION CONTACT: For general information and press
inquiries, contact Mr. Kevin Ropp, Office of Communications, Room N-
3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone (202) 693-1999. For technical
inquiries, contact Donald Pittenger, Directorate of Standards and
Guidance, Room N-3609, OSHA, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-2255 or fax
(202) 693-1663.
SUPPLEMENTARY INFORMATION:
References and Exhibits
In this Federal Register notice, OSHA references a number of
supporting materials. References to these materials are given as
``Ex.'' followed by the number of the document. The referenced
materials are posted in both Docket No. OSHA-S031-2006-0665 (which is
available at http://www.regulations.osha.gov) and OSHA Docket No. S-031 (which is available at http://dockets.osha.gov). The documents are also
o
available at the OSHA Docket Office (see ADDRESSES section). For
further information about accessing exhibits referenced in this Federal
Register notice, see the ``Public Participation'' heading in the
SUPPLEMENTARY INFORMATION section of this document.
Table of Contents
I. Background
II. Legal Considerations
III. Summary and Explanation of the Proposed Rule
IV. Preliminary Economic and Regulatory Screening Analysis
V. Environmental Impact Analysis
VI. Paperwork Reduction Act
VII. Federalism
VIII. State Plan Standards
IX. Unfunded Mandates
X. Public Participation
XI. List of Subjects in 29 CFR part 1910
XII. Authority and Signature
XIII. Amendments to Standards
I. Background
History of the Standard
In 1970, Congress enacted the Occupational Safety and Health Act
(29 U.S.C. 651 et seq.) (the Act or the OSH Act) directing OSHA to
promulgate safety and health standards to assure, as far as possible,
safe and healthful working conditions for every employee in the Nation.
To expedite OSHA's mission, Congress directed the Secretary of Labor
through section 6(a) of the Act (29 U.S.C. 655(a)) to promulgate safety
and health standards within the first two years of the Act's enactment
by summarily adopting existing national consensus and established
Federal standards, without requiring the Agency to go through the
rulemaking procedures detailed in section 6 of the Act.
On May 29, 1971, pursuant to section 6(a) of the Act, OSHA
promulgated its explosives and blasting agents standard at 29 CFR
1910.109 (36 FR 10553-10562). The standard was based on two national
consensus standards--the National Fire Protection Association (NFPA)
495-1970 Code for the Manufacture, Transportation, Storage, and Use of
Explosives and Blasting
[[Page 18793]]
Agents, and NFPA 490-1970 Code for the Storage of Ammonium Nitrate.
The explosives and blasting agents standard promulgated in 1971 was
similar to the current standard found at Sec. 1910.109 and included
provisions on the storage of explosives, blasting agents, and ammonium
nitrate; the transportation of explosives; and the use of explosives
and blasting agents. Few significant changes have been made to the
standard since its promulgation. On March 31, 1972, OSHA amended the
standard by adding paragraph (j) ``Small arms ammunition, small arms
primers, and small arms propellants'' (37 FR 6577). It also added
paragraph (k) ``Scope,'' which stated in part that: ``This section
applies to the manufacture, keeping, having, storage, sale,
transportation, and use of explosives, blasting agents, and
pyrotechnics'' 37 FR 6577.
On February 24, 1992, OSHA issued a new standard at Sec. 1910.119
``Process Safety Management'' (PSM) covering working conditions during
the manufacture of highly hazardous chemicals (57 FR 6356). Both the
manufacture of explosives (excluding blasting agents) and the
manufacture of pyrotechnics must meet the requirements contained in the
PSM standard. 57 FR 6356. The PSM final rule revised the scope
provision in the explosives and blasting agents standard by adding
Sec. 1910.109(k)(2) which states that the manufacture of explosives
must meet the requirements contained in Sec. 1910.119 and by adding
Sec. 1910.109(k)(3) which states that the manufacture of pyrotechnics
must meet the requirements in Sec. 1910.119. 57 FR 6356.
The most recent revisions made to Sec. 1910.109 were on June 18,
1998 (63 FR 33450) in which OSHA amended two provisions to make them
consistent with Department of Transportation (DOT) regulations. The
revisions now allow blasting caps to be transported on the same vehicle
with other explosives (Sec. 1910.109(d)(1)(iv)) and allow the re-use
of containers and packaging materials that have previously contained
explosives provided that such re-use is performed in accordance with
DOT regulations at 49 CFR 173.28 (Sec. 1910.109(e)(2)(i)).
The Petition
On July 29, 2002, OSHA received a petition (the Petition) from the
Institute of Makers of Explosives (IME) and the Sporting Arms and
Ammunition Manufacturers' Institute (SAAMI) to revise the standard. A
copy of the Petition can be found at Docket No. OSHA-S031-2006-0665
(Ex. 2-1). IME is an association of manufacturers of high explosives
and other companies that distribute explosives or provide other related
services and the SAAMI is an association of manufacturers of sporting
firearms, ammunition, and related components. The Petition claimed that
Sec. 1910.109 does not reflect significant technological and safety
advances made by the explosives industry since the standard was
promulgated. It further contended that the standard contains outdated
references, classifications, and jurisdiction-related provisions that
do not accurately represent the current regulatory environment.
The Petition requested OSHA to make a number of changes to the
standard, including the following, and provided draft regulatory
language:
Exclude the manufacture of explosives from the PSM
requirements of Sec. 1910.119 and incorporate revised PSM requirements
for the manufacture of explosives into Sec. 1910.109;
Replace references to outdated DOT explosives
classifications with the current DOT classification system;
Eliminate the provisions in Sec. 1910.109 covering the
storage of explosives and the construction of magazines because they
are regulated by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF);
Eliminate provisions in Sec. 1910.109 applicable to the
transportation of explosives on public highways because such
transportation is regulated by DOT;
Update provisions for guarding against accidental
initiation by sources of extraneous electricity;
Include provisions governing the intra-plant
transportation of explosives;
Include provisions for the use of nonelectric detonation
systems;
Revise provisions regarding the crimping of detonators to
safety fuse;
Update provisions for clearing the blasting area of
unauthorized personnel; and
Update the provisions for the design of bulk delivery and
mixing vehicles and of mixing equipment.
In response to the Petition, OSHA carefully reviewed the
requirements of the current standard and other related OSHA standards.
It analyzed the recommendations as well as the draft regulatory
language provided in the Petition. OSHA also examined the regulations
of other federal agencies relating to explosives and consulted with
interested parties about the need to revise the standard. Apart from
IME and SAAMI, these interested parties included the International
Society of Explosives Engineers (ISEE), the American Pyrotechnics
Association (APA), the United Steel Workers of America (USWA), and the
Paper, Allied-Industrial, Chemical and Energy Workers International
(PACE). In addition, OSHA consulted with other Federal agencies about
their explosives regulations and procedures. These Federal agencies
included the DOT, ATF, the Interagency Committee on Explosives (ICE),
the Department of Defense Explosives Safety Board (DDESB), the Consumer
Product Safety Commission (CPSC), and the Mine Safety and Health
Administration.
Based upon its review of the Petition and the standard, OSHA has
concluded that the following actions are appropriate. These actions are
discussed in greater detail in the summary and explanation section of
the proposed rule (see section III).
A. Update the Standard
Workplace hazards associated with explosives activities pose
significant risks to employees. OSHA has determined that the existing
standard needs to be updated to adequately protect employees from these
risks. Each year, over 5 billion pounds of explosives are manufactured
or imported into the U.S.A. These explosives are used on a daily basis
in many different ways. The manufacture, storage, transportation, sale,
and use of explosives present significant risks not only to the
employees who work directly with them but to the many other employees
who may work in the immediate vicinity of the explosives.
Explosives are, by their nature and design, inherently dangerous
and their safe handling, storage, and use are critical to the safety of
those working with or near them. There have been many incidents in the
past of injuries and deaths resulting from the accidental detonation of
explosives. One of the most famous examples, the Texas City Disaster,
did not actually involve explosives but ammonium nitrate, one of the
ingredients used to make a type of explosive called blasting agents. On
April 16, 1947, a ship named the SS Grandcamp was docked at the port of
Texas City, Texas. Its cargo hold was full of ammonium nitrate. Shortly
after a small fire was detected in the hold, the ammonium nitrate
detonated. The explosion killed at least 581 people, injured over 5,000
others, destroyed the port, and severely damaged the town. The
shockwave from the explosion shattered windows in Houston, over 40
miles away. Only three years earlier, another ship docked at Port
Chicago, California, exploded when its cargo of explosives detonated.
The explosion
[[Page 18794]]
killed 320 sailors and civilians and injured over 400 others.
A review of accidents involving explosives indicates that such
incidents are most often caused by unsafe work practices or faulty
equipment. These factors are frequently exacerbated by the failure to
properly train not only the employees handling and using the explosives
but also the employees in the vicinity of the explosives in question.
In many cases, the initial incident, while serious, triggers even
greater loss of life and property by spreading to nearby facilities or
causing serious injury to employees trying to fight the resulting fire.
The existing standard has undergone few significant revisions since
it was promulgated over 35 years ago and many of its requirements do
not accurately reflect current working conditions in the explosives
industry. Over the last 35 years, the explosives industry has changed
significantly. New forms of explosives have been developed (e.g.,
emulsions), new kinds of detonators have been introduced (e.g.,
electronic detonators), and substantial changes have been made in the
processes and equipment employed to create, handle and use explosives
(e.g., new kinds of bulk delivery vehicles). OSHA has concluded that
the existing standard must be updated to reflect these changes and to
adequately protect employees from the significant risks involved in
working with or near explosives. To update the standard, OSHA has
consulted with other federal agencies and with interested parties about
new technologies, products, and procedures used by the explosives
industry and has incorporated these developments into the proposed
rule. It has also updated all references in the standard to current
national consensus standards.
B. Increase the Clarity and Focus of the Standard
Many of the existing requirements in Sec. 1910.109 are difficult
to understand, repetitive, and internally inconsistent. In addition,
some of these existing requirements address issues, such as general
public safety, that go beyond OSHA's authority to regulate. When the
standard was promulgated in 1971 through section 6(a) of the Act, OSHA
adopted much of the language contained in the national consensus
standards upon which it was based (i.e., NFPA 495 and NFPA 490). These
national consensus standards were not written in language well suited
for a Federal regulation and had broader coverage (e.g., public safety)
than needed by OSHA to cover working conditions in the explosives
industry.
To make the standard more ``user-friendly,'' the proposal has been
rewritten in plain language. Internal inconsistencies and duplicative
requirements have been eliminated. In addition, it has been rewritten
to eliminate references to public safety that are beyond OSHA's
authority to regulate.
C. Increase the Regulatory Consistency of the Standard
There are inconsistencies between the explosives regulations of
different Federal agencies. For example, OSHA classifies explosives in
its current standard as Class A, Class B, and Class C explosives. ATF
classifies explosives in terms of high explosives, low explosives, and
blasting agents (27 CFR 555.202). DOT has adopted the United Nations
Globally Harmonized System of Classification and Labelling of Chemicals
(GHS) (Ex. 2-2). The GHS is intended to harmonize existing
communication systems on chemicals in order to develop a single,
worldwide harmonized system to address classification of chemicals
according to their hazards, and communicate the related information
through labels and safety data sheets. Based on the GHS, DOT classifies
all explosives as Class 1 chemicals and further subdivides them into
Division 1.1 through 1.6 explosives (49 CFR 173.50).
Magazines (structures used for the storage of explosives) are also
classified differently by different Federal agencies. For example, OSHA
classifies magazines as Class I and Class II (Sec. 1910.109(c)(1)) but
ATF classifies them as Type 1 through Type 5 (27 CFR 555.203).
One of OSHA's major goals in this proposed rulemaking is to
increase regulatory consistency with other Federal agencies involved in
regulating the explosives industry and to eliminate confusion within
the regulated community. To achieve this goal, OSHA proposes to adopt
the GHS definitional classification system for ``explosives.'' This
will make OSHA's classification system consistent with the one used by
DOT, which is also based on the GHS.
D. Increase the Regulatory Flexibility of the Standard
To provide the regulated community with greater regulatory
flexibility, OSHA has endeavored to use general performance-oriented
language in the proposed standard. This allows OSHA to draft a
requirement in terms of a goal and it allows the employer greater
choice on how to achieve that goal.
E. Resolve Authority Issues in the Standard
There is some confusion in the regulated community over the
boundaries of OSHA's authority to regulate working conditions in the
explosives industry. One of OSHA's goals in this rulemaking is to
clarify the extent of its authority to regulate working conditions in
the explosives industry. In particular, OSHA discusses the boundaries
of its authority to regulate working conditions during the storage of
explosives and during the transportation of explosives.
II. Legal Considerations
The purpose of the OSH Act is ``to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources.'' 29 U.S.C. 651(b). To
achieve this goal, Congress authorized the Secretary of Labor to
promulgate and enforce occupational safety and health standards (see 29
U.S.C. 655(a) authorizing summary adoption of existing consensus and
federal standards within two years of Act's enactment, 655(b)
authorizing promulgation of standards pursuant to notice and comment,
and 654(b) requiring employers to comply with OSHA standards).
A safety or health standard is a standard ``which requires
conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes, reasonably necessary or appropriate
to provide safe or healthful employment'' (29 U.S.C. 652(8)).
A standard is reasonably necessary or appropriate within the
meaning of Section 652(8) if it substantially reduces or eliminates
significant risk, and is economically feasible, technologically
feasible, and cost effective, and is consistent with prior Agency
action or is a justified departure, is supported by substantial
evidence, and is better able to effectuate the Act's purposes than any
national consensus standard it supersedes. See 58 FR 16612-16616 (March
30, 1993).
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. American Textile Mfrs. Institute v. OSHA, 452
U.S. 490, 513 (1981) (ATMI); American Iron and Steel Institute v. OSHA,
939 F.2d 975, 980 (D.C. Cir. 1991) (AISI).
A standard is economically feasible if industry can absorb or pass
on the costs
[[Page 18795]]
of compliance without threatening its long-term profitability or
competitive structure. See ATMI, 452 U.S. at 530 n. 55; AISI, 939 F.2d
at 980. A standard is cost effective if the protective measures it
requires are the least costly of the available alternatives that
achieve the same level of protection. ATMI, 452 U.S. at 514 n. 32;
International Union, UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)
(LOTO II).
Section 6(b)(7) authorizes OSHA to include among a standard's
requirements labeling, monitoring, medical testing and other
information gathering and transmittal provisions. 29 U.S.C. 655(b)(7).
All standards must be highly protective. See 58 FR at 16614-16615;
LOTO II, 37 F.3d at 668-669. Finally, whenever practical, standards
shall ``be expressed in terms of objective criteria and of the
performance desired.'' 29 U.S.C. 655(b)(5).
III. Summary and Explanation of the Proposed Rule
OSHA's Authority To Regulate
The purpose of the following discussion is to clarify the degree to
which OSHA has authority to regulate working conditions relating to
explosives. A number of Federal agencies have authority to regulate
explosives. For example, the OSH Act grants OSHA authority to create
and enforce standards covering workplace safety and health. As part of
its mission, OSHA currently regulates working conditions in the
storage, sale, transportation, manufacture, and use of explosives (29
CFR 1910.109 and 1910.119 and part 1926 subpart U). The Mine Safety and
Health Administration is responsible for regulating the transportation,
storage, and use of explosives at mining facilities subject to the
Federal Mine Safety and Health Act of 1977. Its relevant regulations
can be found at 30 CFR 56.6000 to 56.6905, 57.6000 to 57.6960, 75.1300
to 75.1328, and 77.1300 to 77.1304. The United States Department of
Transportation (DOT), under the Hazardous Materials Transportation Act
(49 U.S.C. 5101 et seq.), is responsible for regulating the safe
transportation of explosives in intrastate, interstate, and foreign
commerce. Its regulations cover not only the movement of explosives in
commerce but also the loading, unloading, and storage of explosives
incidental to that movement (49 CFR parts 171 to 180 and 397).
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
regulations cover the import, manufacture, distribution, and storage of
explosives (27 CFR part 555). Its regulations require all
manufacturers, importers, and dealers in explosives to obtain a Federal
license from ATF and require certain users of explosives to obtain a
Federal permit from ATF. The Agency also regulates the safe and secure
storage of explosives at approved facilities. The United States Coast
Guard has regulations covering the loading, transportation, unloading,
and stowage of explosives on vessels and at related land-side
facilities (33 CFR part 126, 46 CFR part 194, 49 CFR parts 171 to 173
and 176).
The Consumer Product Safety Commission regulates consumer fireworks
as part of its mission to protect the public from unreasonable risks of
serious injury or death from consumer products (16 CFR parts 1500 and
1507). Its regulations contain construction, performance, and labeling
requirements for consumer fireworks. The Environmental Protection
Agency, under such statutes as the Resource Conservation and Recovery
Act (42 U.S.C. 6901 et seq.), the Clean Water Act (33 U.S.C. 1251 et
seq.), and the Clean Air Act (42 U.S.C. 7401 et seq.), regulates
releases and wastes involved in the manufacture, use, and disposal of
explosives. The United States Department of the Interior's Office of
Surface Mining is responsible for regulating blast effects, such as
flyrock and ground vibration, near surface mines (30 CFR 816, 817, and
850).
Given that there are multiple federal agencies that have authority
to regulate explosives and that there are several different aspects to
the regulation of explosives, areas can develop where federal agency
authorities overlap. OSHA recognizes that there is the potential for
overlap between provisions of this NPRM and a recent Department of
Homeland Security (DHS) proposed regulation. Pursuant to the DHS
Appropriations Act of 2007, Public Law 109-295 (October 4, 2006), DHS
has authority to regulate the security of chemical facilities. DHS
published an Advance Notice of Rulemaking titled Chemical Facility
Anti-terrorism Standards (71 FR 78276) (December 28, 2006) and will
publish an implementing interim final rule on the matter. The DHS
Advance Notice proposes to require high-risk chemical facilities to
develop and implement ``Site Security Plans'' with measures that
address their security vulnerabilities (as determined through a
``Vulnerability Assessment'') and that address the DHS risk-based
performance standards for security at chemical facilities. To the
extent that any overlapping issues develop, OSHA and DHS will work to
resolve those issues.
The above description is not a complete listing of all the Federal
agencies that regulate explosives. With so many agencies involved,
confusion has occurred in the regulated community over the regulatory
boundaries between some agencies. One issue that has arisen concerns
the degree of overlap in OSHA and ATF regulations covering the storage
of explosives. Another issue involves whether OSHA has the authority to
regulate working conditions during the transportation of explosives
when DOT and the United States Coast Guard also regulates such
transportation. The following is a discussion of these two issues.
OSHA's Authority to Regulate the Storage of Explosives. The OSH Act
gives OSHA broad authority to promulgate and enforce standards to
promote workplace safety and health. 29 U.S.C. 651. The courts have
supported this broad interpretation of OSHA's authority. Southern
Railway Co. v. OSHRC, 539 F.2d 335, 338 (4th Cir. 1976) cert. denied,
429 U.S. 999 (1976) (``OSHA was enacted in response to an appalling
record of death and disability in our industrial environment, and it
was the clear intent of Congress to meet the problem with broad and,
hopefully, effective legislation.''). However, OSHA's authority to
regulate working conditions is restricted by section 4(b)(1) of the OSH
Act (29 U.S.C. 653(b)(1)), which states that:
Nothing in this Act shall apply to working conditions of
employees with respect to which other Federal agencies * * *
exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health.
Congress enacted this provision, called the ``preemption
provision,'' to avoid duplicative regulatory coverage between OSHA and
other Federal agencies in the area of workplace safety and health.
Organized Migrants in Community Action v. Brennan, 520 F.2d 1161, 1161
(D.C. Cir. 1975). The preemption provision prevents OSHA from
regulating working conditions when another Federal agency exercises its
statutory authority to prescribe or enforce standards or regulations
covering those working conditions. Chao v. Mallard Bay Drilling, Inc.,
524 U.S. 235, 241 (2002). OSHA is not preempted if another Federal
agency has statutory authority but has not exercised that authority.
524 U.S. at 241.
Is OSHA preempted by ATF under the preemption provision of the OSH
Act from regulating working conditions
[[Page 18796]]
relating to the storage of explosives? To answer this question, the
following questions must be answered. Does ATF have statutory authority
to regulate the storage of explosives? If so, is ATF exercising that
authority? If so, to what extent do ATF's requirements cover the same
working conditions as OSHA's requirements?
Title XI of the Organized Crime Control Act of 1970, Pub.L. No. 91-
452, 84 Stat. 922, gives ATF, through the Secretary of the Treasury,
the statutory authority to regulate the storage of explosives. Section
1101 of Title XI states that ``[t]he Congress hereby declares that the
purpose of this title is to protect interstate and foreign commerce
against interference and interruption by reducing the hazard to persons
and property arising from misuse and unsafe or insecure storage of
explosive materials.'' 84 Stat. 952. Thus, Congress gave ATF the
statutory authority to issue and enforce regulations to protect persons
(including employees) from the unsafe storage of explosives. ATF has
exercised this authority by promulgating and enforcing regulations
covering the storage of explosives (see 27 CFR part 555).
ATF's explosive storage regulations are very similar to OSHA's
requirements for working conditions involved in the storage of
explosives. Many of ATF's requirements affect the same types of working
conditions as OSHA's requirements. The following table shows the
overlap between ATF's regulations and OSHA's requirements for the
storage of explosives.
------------------------------------------------------------------------
ATF's requirements OSHA's requirements
------------------------------------------------------------------------
27 CFR 555.203 Types of magazines......... 29 CFR 1910.109(c)(1)(iv)
and (v).
27 CFR 555.206 Location of magazines...... 29 CFR 1910.109(c)(1)(vi),
(vii) and (viii).
27 CFR 555.207 to .211 Construction of 29 CFR 1910.109(c)(2), (3)
magazines. and (4).
27 CFR 555.212 Smoking and open flames.... 29 CFR 1910.109(c)(5)(vii).
27 CFR 555.213 Quantity and storage 29 CFR 1910.109(c)(1)(ii).
restrictions.
27 CFR 555.214 Storage within magazines... 29 CFR 1910.109(c)(5).
27 CFR 555.215 Housekeeping............... 29 CFR 1910.109(c)(5)(iv)
and (v).
27 CFR 555.216 Repair of magazines........ 29 CFR 1910.109(c)(5)(vi).
27 CFR 555.217 Lighting................... 29 CFR 1910.109(c)(2)(vi).
27 CFR 555.218 to .220 Tables of distances 29 CFR 1910.109(c)(1) Table
for storage of explosive materials. H-21.
29 CFR 1910.109(g)(4) Table
H-22.
------------------------------------------------------------------------
ATF's regulations for the storage of explosives apply to the same
kinds of working conditions as OSHA's requirements for the storage of
explosives. Although ATF's regulations do not always contain the same
or similar requirements as OSHA's requirements, they cover the same
general working conditions. In some cases, ATF's regulations include
working conditions not covered as extensively by OSHA's requirements.
For example, unlike OSHA's requirements, ATF's regulations contain
separate requirements for the storage of display fireworks, pyrotechnic
compositions, and explosive materials used in assembling fireworks (see
27 CFR 555.221 to .224).
In summary, ATF has statutory authority to regulate the storage of
explosives and it exercises this statutory authority through its
promulgation and enforcement of regulations covering explosives
storage. Its storage regulations affect the same kinds of working
conditions as those covered by OSHA's requirements in Sec. 1910.109.
Therefore, OSHA has concluded that its storage requirements for
explosives in Sec. 1910.109(c) are preempted under section 4(b)(1) of
the OSH Act by ATF's regulations at 27 CFR part 555 subpart K. As a
consequence, OSHA is proposing in this rulemaking to eliminate the
provisions in Sec. 1910.109 that deal with the storage of explosives.
OSHA is proposing to retain the provisions in Sec. 1910.109(i)
that cover the storage of ammonium nitrate. These provisions are not
pre-empted by ATF's explosive storage regulations in 27 CFR part 555
subpart K because, although ammonium nitrate is a component of certain
explosives such as ANFO, by itself, it is not an explosive. Therefore,
it is not regulated by these ATF regulations. In addition, OSHA is also
proposing to retain the provisions in Sec. 1910.109(j) that cover the
storage of small arms ammunition and components of small arms
ammunition. Although small arms ammunition and components of small arms
ammunition, such as small arms primers and smokeless propellants, are
explosives, ATF's explosives storage regulations do not apply to the
storage of ammunition as defined in 27 CFR 555.11 (see 27 CFR
555.141(a)(4)). Thus, OSHA's existing Sec. 1910.109(j) covering the
storage of small arms ammunition and components of small arms
ammunition are not preempted by ATF's regulations.
Furthermore, ATF's explosives regulations (see 27 CFR
555.141(a)(7)) do not apply to consumer fireworks as defined in 27 CFR
555.11. These items are generally classified as UN0336, UN0337, UN0431,
and UN0432 by DOT at 49 CFR 172.101, and generally known as consumer
fireworks or articles pyrotechnic. These fireworks are classified as
Class 1 Division 1.4 explosives by DOT at 40 CFR 172.101. Because ATF
does not regulate the storage of these types of fireworks, OSHA retains
authority to regulate their storage. At this time, however, OSHA is not
proposing to regulate the storage of these types of fireworks in the
proposed standard but plans to deal with them in a future rulemaking on
pyrotechnics.
Issue #1: As discussed above, OSHA is proposing to withdraw its
requirements in Sec. 1910.109 covering the storage of explosives. OSHA
is seeking comments on the following issue. Apart from small arms
ammunition and related components, are there any explosives that are
currently covered by the storage requirements in Sec. 1910.109 that
are not covered by ATF's storage regulations?
OSHA's Authority to Regulate the Transportation of Explosives. Do
DOT and the United States Coast Guard preempt OSHA from regulating
working conditions during the transportation of explosives? DOT
regulates the transportation of hazardous materials, including
explosives, by statutory authority granted to it by the Hazardous
Materials Transportation Act (the Hazmat Act) enacted in 1975 (49
U.S.C. 1801 et seq.). DOT has exercised this statutory authority by
promulgating and enforcing regulations covering the transportation of
hazardous materials (49 CFR parts 171 to 180). The United States Coast
Guard is called to enforce these authorities during the transportation
of hazardous materials on vessels upon the navigable waters of the
United States. In addition, the United States Coast Guard is authorized
to regulate the handling of dangerous cargo, including explosives, at
waterfront facilities under 33 CFR part 126.
In 1990, Congress amended the Hazmat Act (Pub. L. 101-615, Sec.
2936, Nov. 16, 1990, 104 Stat. 3244) and added the following reverse
preemption language in Sec. 1805(b)(3):
For purposes of section 4(b)(1) of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653(b)(1)), no action taken by the
[DOT] Secretary pursuant to this section shall
[[Page 18797]]
be deemed to be an exercise of statutory authority to prescribe or
enforce standards or regulations affecting occupational safety or
health.
The section in the Hazmat Act referred to in the reverse preemption
language was Sec. 1805 ``Handling of hazardous materials.'' Section
1805(a) covered the number, training, and qualifications of personnel
involved in handling hazardous materials; the type and frequency of
inspections; the equipment used to detect, warn, and control the risks
posed by hazardous materials; the use of equipment and facilities
employed in the handling and transportation of hazardous materials; and
systems for monitoring the safety assurance procedures for transporting
hazardous materials. Section 1805(b) included training criteria for the
safe handling and transportation of hazardous materials. The remaining
provisions in Sec. 1805 covered the registration, filing, and permit
requirements for transporters of hazardous materials.
The reverse preemption language in Sec. 1805(b)(3) of the Hazmat
Act nullified any effect of the OSH Act's 4(b)(1) preemption provision
over matters covered by Sec. 1805 of the Hazmat Act. Because Sec.
1805 covered such things as the training, equipment and facilities used
during the handling and transportation of hazardous materials, OSHA
could regulate working conditions associated with these aspects of the
handling and transportation of hazardous materials.
In 1994, Congress amended and recodified the Hazmat Act to its
current form as 49 U.S.C. chapter 51--Transportation of Hazardous
Material, Sec. 5101 et seq. (Pub. L. 103-272, July 5, 1994, 108 Stat.
745). Although the reverse preemption language was altered and
recodified at Sec. 5107(f)(2), its meaning and coverage remained the
same. Section 5107(f)(2) states:
Sec. 5107 Hazmat employee training requirements and grants
* * * * *
(f) Relationship to other laws.
* * * * *
(2) An action of the Secretary of Transportation under
subsections (a)-(d) of this section and sections 5106, 5108(a)-
(g)(1) and (h), and 5109 of this title is not an exercise, under
section 4(b)(1) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 653(b)(1)), of statutory authority to prescribe or
enforce standards or regulations affecting occupational safety and
health.
Section 5106 involves criteria for the handling of hazardous
materials and includes the following:
The Secretary of Transportation may prescribe criteria for
handling hazardous material, including:
(1) a minimum number of personnel;
(2) minimum levels of training and qualifications for personnel;
(3) the kind and frequency of inspections;
(4) equipment for detecting, warning of, and controlling risks
posed by the hazardous material;
(5) specifications for the use of equipment and facilities used
in handling and transporting the hazardous material; and
(6) a system of monitoring safety procedures for transporting
the hazardous material.
Section 5107(a) to (d) covers training requirements for employees
working with hazardous materials. Section 5108(a) to (g)(1) and (h)
involves registration requirements for transporting hazardous materials
and Sec. 5109 covers safety permits for motor carriers transporting
hazardous materials.
Similar to the reverse preemption language in the 1990 amendments
to the Hazmat Act, Sec. 5107(f)(2) of the 1994 amendments to the
Hazmat Act nullifies any effect of the OSH Act's 4(b)(1) preemption
provision over matters covered by Sec. Sec. 5106, 5107(a) to (d),
5108(a) to (g)(1) and (h), and 5109. This allows OSHA to regulate
working conditions relating to these matters, which include ``the use
of equipment and facilities used in handling and transporting the
hazardous material'' (49 U.S.C. 5106(5)). Accordingly, OSHA has the
authority to not only regulate working conditions at facilities
involved in the transportation of hazardous materials but also when
equipment is used during the transportation of hazardous materials. It
is noteworthy that the reverse preemption language in the 1994
amendments to the Hazmat Act does not exclude DOT from also regulating
the areas covered by Sec. Sec. 5106, 5107(a) to (d), 5108(a) to (g)(1)
and (h), and 5109.
The Occupational Safety and Health Review Commission examined the
reverse preemption language in Yellow Freight Systems, Inc., 17 BNA
OSHC 1699, 1995-97 CCH OSHD ] 31,105 (No. 93-3292, 1996). In that case,
the operator of a freight terminal argued that OSHA's citations against
it were invalid because OSHA was preempted from regulating working
conditions at the terminal by DOT under the 4(b)(1) preemption
provision of the OSH Act. The Commission disagreed with the operator
and concluded that when Congress amended Sec. 1805(b)(3) in the 1990
amendments to the Hazmat Act, it ``intended to nullify the preemptive
effect of DOT actions taken under section 1805.'' Id. at 1701. It also
made the equivalent finding about the reverse preemption language in
the 1994 amendments to the Hazmat Act. Id. At the invitation of the
Commission, DOT submitted its interpretation of Sec. 1805(b)(3) in the
Yellow Freight case. DOT stated that the reverse preemption language
``found in Sec. 1805(b)(3) * * * referred to the entirety of Sec.
1805.'' Id. Thus, DOT agreed that OSHA was not preempted from
regulating working conditions in those aspects of the transportation of
hazardous materials covered by Sec. 1805.
On October 30, 2003, DOT issued a final rule clarifying the
application of its hazardous materials regulations to the loading,
unloading, and storage of hazardous materials incidental to movement in
commerce (68 FR 61906). DOT's hazardous materials regulations cover
pre-transportation functions involving the preparation of hazardous
materials for transportation in commerce. Id. at 61906, 61908. They
also cover transportation functions involving the actual movement of
hazardous materials in commerce, including the loading, unloading, and
storage of hazardous materials that is incidental to that movement. Id.
at 61906, 61914.
In the preamble to the final rule, DOT noted the reverse preemption
language at Sec. 5107(f)(2) in the 1994 amendments to the Hazmat Act
and stated that: ``Such `reverse preemption language' functions to
nullify any effect the OSH Act's 4(b)(1) provision might otherwise have
and thus ensures that OSHA's standards remain applicable (68 FR
61926).'' DOT further stated that it ``neither affirmatively
regulate[s] the working conditions at facilities where pre-
transportation and transportation functions are performed, nor
assert[s] comprehensive regulatory jurisdiction over the working
conditions at these facilities. * * * This final rule makes clear that
[DOT does] not intend to exercise [its] statutory authority in a manner
that precludes OSHA from regulating at facilities where pre-
transportation and transportation functions are performed.'' Id. Thus,
DOT recognizes that, through the reverse preemption language of the
Hazmat Law, OSHA has the statutory authority to regulate working
conditions at facilities where pre-transportation and transportation
functions are performed.
In its final rule, DOT did not directly address whether OSHA has
statutory authority to regulate working conditions during the actual
movement of hazardous materials in commerce. However, it stated that
DOT ``has developed a special expertise that
[[Page 18798]]
makes the Department uniquely qualified to play the primary Federal
regulatory role in the protection of employees who operate motor
vehicles, trains, aircraft, and vessels used to transport hazardous
materials.'' Id. at 61927.
OSHA agrees that DOT has the unique expertise to play a lead role
in the protection of employees during the transportation of hazardous
materials. However, OSHA also recognizes that, through the reverse
preemption language of Sec. 5107(f)(2) in the 1994 amendments to the
Hazmat Act, Congress has granted OSHA statutory authority to regulate
working conditions during the handling and transportation of hazardous
materials. The Agency views this statutory authority to include working
conditions during the actual movement of hazardous material in
commerce, as well as during the preparation of hazardous materials
prior to movement, and the loading, unloading, and temporary storage of
hazardous material incidental to movement.
Although OSHA has the statutory authority to regulate working
conditions at each stage in the transportation of hazardous materials,
the Agency is not required to exercise that authority. OSHA recognizes
DOT and the United States Coast Guard's extensive regulatory expertise
and coverage in the area of the safe transportation of hazardous
materials. The Agency also believes it is important to avoid
duplicative or conflicting regulatory requirements between federal
agencies. As a result, OSHA has no current plans to expand its
regulation of working conditions during the transportation of hazardous
materials.
The following preamble discussion explains significant changes made
in the proposal to the existing standard. The proposed standard changes
the title of 29 CFR 1910.109 from ``Explosives and Blasting Agents'' to
``Explosives.'' Since the proposal includes blasting agents in the
definition of explosives (discussed below), it is no longer appropriate
for the title of the section to include both terms.
This proposed rule contains a complete revision and re-organization
of existing Sec. 1910.109. In addition to requesting comments on any
of the requirements in the proposed standard, OSHA has identified
issues throughout the preamble and has requested comments on these
issues.
OSHA's development of the proposed rule was based in part on the
2001 edition of NFPA 495--Explosive Materials Code. NFPA has recently
issued a 2006 edition of this code. OSHA has compared the differences
between the 2001 and 2006 editions. Any significant changes relevant to
the proposed rule in the 2006 edition compared to the 2001 edition are
discussed at the appropriate location in the preamble. OSHA is
interested in comments on whether there are any requirements in the
2006 edition of NFPA 495 that should be in the proposed rule but have
not been included.
The proposed rule references DOT regulations in several provisions.
OSHA has included these references to DOT regulations to ensure that
the proposed rule is consistent with DOT's regulations. However, OSHA
is interested in comments on whether such DOT references should be
retained, excluded, or replaced with an alternative in the final rule.
If you think some or all of the references to DOT regulations should be
replaced with an alternative, please provide the alternative language
for the affected provisions in the proposed rule.
As an aid to understanding the changes in the proposed rule, a
table, ``Proposed Reorganization of Existing Requirements,'' has been
placed in the docket (Ex. 2-22) listing the requirements in the
existing standard and identifying where they are located in the
proposed rule. In addition, a second table, ``New Requirements in
Proposed Rule,'' has been placed in the docket (Ex. 2-23) listing all
the new provisions in the proposed rule that are not in the existing
standard.
Paragraph (a) Scope. Proposed paragraph (a) defines the
applicability of Sec. 1910.109, and has been moved from existing
paragraph (k), at the end of the standard, to the beginning of the
proposed standard. This change enables a reader to quickly determine
the applicability of the standard.
Proposed paragraph (a)(1) would apply this section to the
manufacture, storage, sale, transportation, handling, and use of
explosives, including blasting agents and pyrotechnics. The proposed
paragraph is similar to existing paragraph (k)(1) except in three ways.
First, for ease of compliance, each of the multiple requirements in
existing paragraph (k)(1) has been moved to a separate proposed
paragraph. As a result, the requirement in existing paragraph (k)(1) on
the applicability of the standard to the use of explosives in medicines
and medicinal agents has been moved to proposed paragraph (a)(3)(ii).
The requirement in existing paragraph (k)(1) on the applicability of
the standard to the sale and use of pyrotechnics has been moved to
proposed paragraph (a)(3)(iii).
Second, proposed paragraph (a)(1) has been rewritten for clarity.
For example, ambiguous terms such as ``keeping'' and ``having'' in
existing paragraph (k)(1) have been removed in proposed paragraph
(a)(1). OSHA believes the proposed language is clearer and more concise
than the existing language, and will enhance compliance.
Third, the application of this section to storage has been removed.
The reason for this is explained in the OSHA's Authority to Regulate
discussion above.
Proposed paragraph (a)(2) requires the employer to comply with
Sec. 1910.119, Process Safety Management (PSM), for operations
involving the manufacture of explosives, as defined in proposed
paragraph (b). The proposed paragraph revises the requirements in
existing paragraph (k)(2), which requires the manufacture of
explosives, as defined in existing paragraph (a)(3), to comply with the
requirements of Sec. 1910.119.
The proposal deletes existing paragraph (k)(3) which requires the
manufacture of pyrotechnics, as defined in existing paragraph (a)(10),
to comply with the requirements of Sec. 1910.119. Paragraph (b) of the
proposed standard defines pyrotechnics as explosives (see discussion
below on proposed paragraph (b)). Thus, it is no longer necessary to
have one provision requiring that the manufacture of explosives comply
with Sec. 1910.119 and another provision requiring that the
manufacture of pyrotechnics comply with Sec. 1910.119. Proposed
paragraph (a)(2) requiring that the manufacture of explosives comply
with Sec. 1910.119 covers all explosives as defined in proposed
paragraph (b), including pyrotechnics.
Under both the existing standard (existing paragraph (k)) and the
proposed standard (proposed paragraph (a)(2)), the manufacture of
blasting agents does not have to comply with the PSM standard at Sec.
1910.119. The existing standard does not define blasting agents as
explosives but the proposed standard classifies them as Class 1
Division 1.5 explosives (see discussion below on proposed paragraph
(b)). Even though the proposed standard includes blasting agents as
explosives and requires that the manufacture of explosives comply with
Sec. 1910.119, OSHA in proposed paragraph (a)(2) is specifically
excluding blasting agents from the requirements of Sec. 1910.119. This
exclusion includes water gels, slurries, and emulsions classified as
Class 1 Division 1.5 explosives.
The PSM standard was developed to safeguard employees from
catastrophic releases of toxic, reactive, flammable, or
[[Page 18799]]
explosive chemicals (see Sec. 1910.119 Purpose). Blasting agents, as
Class 1 Division 1.5 explosives, are very insensitive and have a very
low probability of causing an unintended mass explosion. For this
reason, OSHA has concluded that blasting agents, unlike Division 1.1 to
1.4 explosives, do not pose the potential catastrophic consequences to
employees required of chemicals subject to Sec. 1910.119 and should be
excluded from the PSM standard. However, if one or more ingredients of
a blasting agent is otherwise classified as an explosive (i.e., as a
Division 1.1, 1.2, 1.3, or 1.4 explosive), then the manufacturing
process for that blasting agent would be required to comply with Sec.
1910.119. Although the manufacture of blasting agents is not subject to
the PSM standard, both the existing standard at Sec. 1910.109(g) and
(h) and the proposed standard at Sec. 1910.109(c) and (g) have
requirements covering the safe manufacture of blasting agents.
Proposed paragraph (a)(3)(i) clarifies that Sec. 1910.109, as a
general industry standard, does not apply to construction work covered
by 29 CFR part 1926. This paragraph is new but does not change the
scope of the existing standard because the existing standard also does
not apply to construction work. Subpart U of 29 CFR part 1926
specifically addresses blasting and the use of explosives in the
construction industry. OSHA believes the proposed language clarifies
the scope of the proposed standard and addresses some confusion on the
issue that was revealed during discussions with stakeholders.
Proposed paragraph (a)(3)(ii) states that this section does not
apply to the use of explosives in medicines and medicinal agents in the
forms prescribed by the official United States Pharmacopeia and the
National Formulary (USP-NF). The USP-NF is available from the United
States Pharmacopeial Convention, Inc., 12601 Twinbrook Parkway,
Rockville, MD, 20852. The proposal continues the existing standard's
exclusion of medicines and medical agents containing explosives from
the standard's requirements. For ease of compliance, this exclusion was
separated from other requirements within existing paragraph (k)(1) and
made into a separate proposed paragraph (a)(3)(ii). The proposed
language is similar to the existing exclusion, and was modified to be
consistent with paragraph 1.1.7 of the 2001 edition of NFPA 495 (Ex. 2-
5).
Proposed paragraph (a)(3)(iii) states that the section does not
apply to the use or sale of both public display and consumer
pyrotechnics. For ease of compliance, this requirement was separated
from other requirements within existing paragraph (k)(1) and is
proposed as paragraph (a)(3)(iii). The application of the proposed
paragraph has not changed from that of existing (k)(1). However, OSHA
has revised the paragraph to clarify that the proposed standard does
not apply to the use or sale of both public display and consumer
fireworks. Note that, although they are not covered by the existing or
proposed Sec. 1910.109 standard, OSHA has the authority to regulate
the use of public display fireworks and the sale of public display and
consumer fireworks. However, the use of consumer fireworks by the
public does not fall within OSHA's authority to regulate workplace
safety and health. OSHA believes the proposed language is clearer than
the existing language in paragraph (k)(1).
Since the initial publication of Sec. 1910.109, NFPA has published
three codes for the use and sale of pyrotechnics: (1) NFPA 1123-2000--
Code for Fireworks Display; (2) NFPA 1124-2003--Code for the
Manufacture, Storage, and Retail Sales of Fireworks and Pyrotechnic
Articles; and (3) NFPA 1126-2001--Standard for the use of Pyrotechnics
before a Proximate Audience. In the future, OSHA intends to conduct
further rulemaking based upon these NFPA codes and at that time will
modify the scope of Sec. 1910.109 to include the sale of both public
display pyrotechnics and consumer fireworks and the use of pyrotechnics
at public displays. Unless otherwise stated, the provisions of the
proposed rule, like those in the current rule, apply to pyrotechnics as
well as to other types of explosives. In addition, the proposal
continues to apply OSHA's PSM regulations to the manufacture of
pyrotechnics as discussed in proposed paragraph (a)(2) above. However,
OSHA has decided, because of time and resource constraints, to address
additional issues regarding pyrotechnics in a separate rulemaking. OSHA
believes that trying to expand pyrotechnics coverage in the current
rulemaking would result in significant delay in providing needed
protection from explosives hazards. Proposed paragraph (i) is being
reserved for this future pyrotechnics rulemaking.
Paragraph (b) Definitions applicable to this section. Paragraph (b)
lists and defines all major terms used in the proposed standard. Some
of the proposed definitions are the same as those in the existing
standard, while others have been reworded. Some definitions are new and
some have not been retained from the existing standard.
New Definitions
Upon consideration of technological developments in the explosives
field, the plain language initiative, inconsistencies in definitions
among Federal agencies, and definitions used in relation to public
safety versus employee safety, OSHA proposes the following new
definitions:
Blast area. OSHA is proposing to define this term to mean the area
of a blast within the influence of flying rock or other debris, gases,
and concussion. This term is commonly used in the explosives industry
and is being added to the proposal to clarify its safety requirements
for blasting operations. The use of the term in the proposal is
consistent with its use in the 2001 edition of NFPA 495 (Ex. 2-5).
Blast site. This term would be defined to mean the area where
explosives are handled during the preparation and loading of drill
holes, including 50 feet (15.2 m) in all directions from the perimeter
formed by loaded holes. The 50-foot distance requirement, applies in
all directions along the full depth of the drill hole and the blast
site exists until the explosives are detonated. This term is commonly
used in the explosives industry and is being added to the proposal to
clarify its safety requirements for blasting operations. The use of the
term in the proposal is consistent with its use in the 2001 edition of
NFPA 495 (Ex. 2-5).
Issue #2: In subsequent discussions with the Institute of Makers of
Explosives (IME) following their submission of the Petition, they
recommended that OSHA revise the definition of blast site to decrease
the 50-foot requirement to 30 feet if ``the perimeter of loaded holes
is marked and separated from non-blast site areas by a barrier.'' IME
would define a barrier as a ``material object or objects that
separates, keeps apart, or demarcates in a conspicuous manner such as
cones or a warning sign or tape.'' OSHA, however, is concerned that
simply installing a barrier, as defined by IME, at a blast site may not
provide the degree of safety needed to allow employees to be as close
as 30 feet to explosion hazards. OSHA requests specific comments on the
IME recommendation.
Blaster-in-charge. OSHA would define this term to mean the person
in charge of the handling, loading, and firing of explosives within the
blast site and blast area. This term is intended to identify a person
designated by the employer to be in charge of the
[[Page 18800]]
handling, loading, and firing of explosives.
The 2001 edition of NFPA 495 (Ex. 2-5) does not use the term
``blaster-in-charge'' but uses the term ``blaster'' as a person
``qualified to be in charge of and responsible for the loading and
firing of a blast.'' While NFPA 495 does not specifically require one
person to be in charge of the blast area, the definition of blaster-in-
charge in the proposed standard requires that one person is in charge
of the blast area and the blast site. This is being done to enhance
safety by centralizing control in one person. The proposed term
``blaster-in-charge'' is based upon a recommendation in the Petition
(Ex. 2-1).
Bulk delivery vehicle. This term would be defined to mean any
vehicle that transports blasting agents or their ingredients, in bulk
form. Bulk delivery vehicles may also be capable of mixing ingredients
to form blasting agents and loading blasting agents directly into drill
holes. For example, bulk delivery vehicles may contain ammonium nitrate
and a fuel oil in separate compartments and mix the two to form a
blasting agent just before the blasting agent is transferred into the
drill hole. The bulk delivery vehicle may also be capable of adding an
emulsion to the mixture. The bulk delivery vehicle will either auger or
pump the blasting agent into the drill hole. This definition is
intended to provide clarity and reflects technological advancements in
bulk blasting agent delivery methods.
Competent person. This term would be defined by OSHA to mean an
employee designated by the employer who, by way of training and/or
experience, is knowledgeable of applicable standards, is capable of
identifying workplace hazards relating to explosives, and has authority
to take appropriate corrective actions to control such hazards.
Although not defined, this term is used in the existing standard at
(c)(5)(viii), (c)(5)(ix), (d)(2)(iii)(b), and (g)(5)(vii). Defining the
term in the proposed standard enhances safety by clearly stating the
required qualifications of the competent person.
Detonator. OSHA is proposing to define this term to mean any device
containing an initiating or primary explosive that is used for
initiating detonation in another explosive material. A detonator may
not contain more than .35 ounces (10 grams) of total explosives by
weight, excluding ignition or delay charges. The term includes, but is
not limited to, electric blasting caps of instantaneous and delay
types, electronic detonators, blasting caps for use with safety fuse,
detonating cord delay connectors, and nonelectric instantaneous and
delay blasting caps which use detonating cord, shock tube, or any other
replacement for electric leg wires. Although the term is used in the
existing standard in paragraph (e)(1)(ii), it is not defined. The
proposed standard defines the term to enhance regulatory clarity and to
reflect recent technological advances in detonation methods.
Electric detonator. OSHA is proposing that this term be defined as
a detonator designed for, and capable of, initiation by means of an
electric current. This term is reflective of recent technological
advancements in detonation methods.
Electronic detonator. OSHA would define this term to mean a
detonator that utilizes stored electrical energy as a means of powering
an electronic timing delay element/module and that provides initiation
energy for firing the base charge. This term is reflective of recent
technological advancements in detonation methods.
Emulsion. This term would be defined to mean an explosive that
either contains substantial amounts of oxidizer dissolved in water
droplets that are surrounded by an immiscible fuel, or contains
droplets of an immiscible fuel that are surrounded by water containing
substantial amounts of oxidizer. Emulsions, depending on their
properties, are classified as Division 1.1 explosives or Division 1.5
blasting agents. This term has been added due to the development and
routine use of emulsions by the industry, and is based upon a
recommendation in the Petition (Ex. 2-1).
Hot work. OSHA is proposing to define this term to mean any work
involving electric or gas welding, cutting, brazing, or similar flame
or spark-producing operations. This term is consistent with the
definition in the PSM standard (Sec. 1910.119(b)).
Vehicle. This term would be defined by OSHA to mean any motor
vehicle, machine, tractor, trailer, or semi-trailer propelled or drawn
by mechanical power and used in the transportation of explosives. This
replaces the existing definition of ``motor vehicle.'' Unlike the
existing definition of ``motor vehicle,'' the proposed definition does
not contain the word ``highway'' because the proposed standard covers
vehicles that are used both on and off the highway. The term ``self-
propelled'' in the existing definition would be replaced by the phrase
``propelled or drawn by mechanical power'' to be consistent with the
DOT definition of motor vehicle at 49 CFR 171.8 and recommendations of
the Petition (Ex. 2-1).
Revised Definitions
OSHA is proposing the following revisions to existing definitions
in Sec. 1910.109:
Blasting agent. OSHA is proposing that this term be defined as any
material or mixture intended for blasting that is classified as a
Division 1.5 explosive. This is different from the definition in
existing paragraph (a)(1) that reads:
Blasting agent--any material or mixture, consisting of a fuel
and oxidizer, intended for blasting, not otherwise classified as an
explosive and in which none of the ingredients are classified as an
explosive, provided that the finished product, as mixed and packaged
for use or shipment, cannot be detonated by means of a No. 8 test
blasting cap when unconfined.
OSHA has changed the definition of ``blasting agent'' in the
proposed standard to update it and make it consistent with the
definition used by the DOT and the United Nations' Globally Harmonized
System of Classification and Labeling of Chemicals (see discussion
below) explosives classification system. The changes were also
recommended by the Petition (Ex. 2-1).
Explosive. This term would be defined to mean any device, or liquid
or solid chemical compound or mixture, the primary or common purpose of
which is to function by explosion. The term ``explosive'' would be
defined to include all material included as a Class 1 explosive by DOT
in accordance with 49 CFR chapter I. The term would include, but would
not be limited to, dynamite, black powder, pellet powders, detonators,
blasting agents, initiating explosives, blasting caps, safety fuse,
fuse lighters, fuse igniters, squibs, cordeau detonant fuse,
instantaneous fuse, igniter cord, igniters, pyrotechnics, special
industrial explosive materials, small arms ammunition, small arms
ammunition primers, smokeless propellant, cartridges for propellant-
actuated power devices, and cartridges for industrial guns.
In the proposed standard, OSHA would classify explosives using the
same classification system as DOT (see 49 CFR 173.50). Explosives would
be classified using the following divisions:
(i) Division 1.1 consists of explosives that have a mass explosion
hazard. A mass explosion is one which affects almost the entire load
instantaneously.
(ii) Division 1.2 consists of explosives that have a projection
hazard but not a mass explosion hazard.
(iii) Division 1.3 consists of explosives that have a fire hazard
and either a minor blast hazard or a minor
[[Page 18801]]
projection hazard or both, but not a mass explosion hazard.
(iv) Division 1.4 consists of explosives that present a minor
explosion hazard. The explosive effects are largely confined to the
package and no projection of fragments of appreciable size or range is
to be expected. An external fire must not cause virtually instantaneous
explosion of almost the entire contents of the package.
(v) Division 1.5 consists of very insensitive explosives. This
division is comprised of substances which have a mass explosion hazard
but are so insensitive that there is very little probability of
initiation or of transition from burning to detonation under normal
conditions. (The probability of transition from burning to detonation
is greater when large quantities are involved.)
(vi) Division 1.6 consists of extremely insensitive articles which
do not have a mass explosive hazard. This division is comprised of
articles which contain only extremely insensitive detonating substances
and which demonstrate a negligible probability of accidental initiation
or propagation. (The risk from articles of Division 1.6 is limited to
the explosion of a single article.)
These definitions are different from the existing paragraph (a)(3)
that reads:
Explosive--any chemical compound, mixture, or device, the
primary or common purpose of which is to function by explosion,
i.e., with substantially instantaneous release of gas and heat,
unless such compound, mixture, or device is otherwise specifically
classified by the U.S. Department of Transportation; see 49 CFR
chapter I. The term ``explosives'' shall include all material which
is classified as Class A, Class B, and Class C explosives by the
U.S. Department of Transportation, and includes, but is not limited
to dynamite, black powder, pellet powders, initiating explosives,
blasting caps, electric blasting caps, safety fuse, fuse lighters,
fuse igniters, squibs, cordeau detonant fuse, instantaneous fuse,
igniter cord, igniters, small arms ammunition, small arms ammunition
primers, smokeless propellant, cartridges for propellant-actuated
power devices, and cartridges for industrial guns. Commercial
explosives are those explosives which are intended to be used in
commercial or industrial operations.
Note 1: Classification of explosives is described by the U.S.
Department of Transportation as follows (see 49 CFR chapter I):
(i) Class A explosives. Possessing, detonating, or otherwise
maximum hazard; such as dynamite, nitroglycerin, picric acid, lead
azide, fulminate of mercury, black powder, blasting caps, and
detonating primers.
(ii) Class B explosives. Possessing flammable hazard, such as
propellant explosives (including some smokeless propellants),
photographic flash powders, and some special fireworks.
(iii) Class C explosives. Includes certain types of manufactured
articles which contain Class A or Class B explosives, or both, as
components but in restricted quantities.
(iv) Forbidden or not acceptable explosives. Explosives which
are forbidden or not acceptable for transportation by common
carriers by rail freight, rail express, highway, or water in
accordance with the regulations of the U.S. Department of
Transportation, 49 CFR chapter I.
The term ``explosive'' in the proposed standard has been modified
to be more consistent with the definition currently used by DOT. When
Sec. 1910.109 was originally promulgated in 1971, OSHA defined
explosives in terms of Class A, Class B, and Class C explosives.
Blasting agents were considered separately from explosives. At that
time, DOT classified explosives in the same way. While OSHA continues
to use this classification system in the existing standard, DOT has
revised its explosive classification system.
On December 21, 1990, DOT issued a final rule that revised the
``Hazardous Materials Regulations'' contained in 49 CFR chapter I that
cover the classification, packaging and shipping of explosives
(including blasting agents), oxidizers, and flammable liquids and
solids. Essentially, the revisions adopted the United Nations (UN)
Recommendations on the Transport of Dangerous Goods (Ex. 2-18),
standardizing the testing, classification, packaging, labeling,
placarding, and handling of explosives, thereby reducing regulatory
inconsistencies that existed between the United States and other
countries for purposes of transport of dangerous goods.
The revision of DOT's classification system eliminated Classes A,
B, C, and blasting agents, and adopted the UN classification system
that assigns all explosives to Class 1. This UN classification system
is called the Globally Harmonized System of Classification and Labeling
of Chemicals (GHS) (Ex. 2-2). The system further categorizes Class 1
explosives into Divisions 1.1, 1.2, 1.3, 1.4, 1.5, and 1.6. This
classification system includes blasting agents defined as explosives,
and assigns them to Division 1.5.
ATF's classification of explosive materials at 27 CFR 555.202 is
different from both the former and current DOT classification systems
and places explosive materials in three categories: high, low, and
blasting agents. In addition, a list of explosive materials is to be
published at least annually by ATF (see 27 CFR 555.23).
The use of different explosives classification systems by DOT, ATF,
and OSHA is confusing and burdensome for the regulated community.
Therefore, OSHA is proposing to adopt the DOT UN-based classification
system as part of the definition of explosives as applied in Sec.
1910.109(b). The use of this globally-harmonized system enhances
clarity and reduces confusion, thereby resulting in greater
understanding and increased safety in the use of explosives.
Stakeholders have indicated the desire that other departments and
agencies should also consider adoption of the DOT UN-based
classification system to reduce the burden for and misunderstanding
within the industry.
Another change in the definition of explosives in the proposed
standard is the specific inclusion of blasting agents and pyrotechnics.
Since blasting agents and pyrotechnics are considered explosives by DOT
and are listed in the ATF list of explosive materials, they should be
included in the OSHA definition of explosives. There is no significant
impact expected from this change since, in both the existing and
proposed standards, the manufacture of blasting agents is excluded and
the manufacture of pyrotechnics is covered by the PSM requirements (see
existing standard Sec. Sec. 1910.109(k)(2) and (3) and proposed
standard Sec. Sec. 1910.109(a)(2) and (b)).
The following conversion table has been developed to illustrate the
differences between the existing (labeled ``Current OSHA
Classification'') and the proposed (labeled ``Proposed OSHA/Current DOT
Classification'') classification systems and a similar table would be
inserted at the end of the proposed definition of ``explosives''.
Classification Conversion Table
------------------------------------------------------------------------
Proposed OSHA/ current DOT classification Current OSHA classification
------------------------------------------------------------------------
Division 1.1.............................. Class A explosives.
Division 1.2.............................. Class A or Class B
explosives.
Division 1.3.............................. Class B explosives.
Division 1.4.............................. Class C explosives.
Division 1.5.............................. Blasting agents.
Division 1.6.............................. No applicable hazard class.
------------------------------------------------------------------------
Pyrotechnics. OSHA would define this term to mean any combustible
or explosive compositions or manufactured articles designed and
prepared for the purpose of producing audible or visible effects by
combustion, deflagration, or detonation, which are commonly referred to
as fireworks. This proposed definition is the same as the
[[Page 18802]]
existing definition in (a)(10) except that it includes the additional
words ``by combustion, deflagration, or detonation.'' These words have
been added to the proposed definition to make it consistent with the
definitions used by ATF and NFPA for fireworks.
ATF defines fireworks in 27 CFR 555.11 (Ex. 2-4) as ``any
composition or device designed to produce a visible or an audible
effect by combustion, deflagration, or detonation, and which meets the
definition of `consumer fireworks' or `display fireworks' as defined by
this section.'' NFPA similarly defines fireworks in paragraph 3.3.30 in
the 2003 edition of NFPA 1124 (Ex. 2-19) as ``any composition or device
for the purpose of producing a visible or an audible effect by
combustion, deflagration, or detonation, and that meets the definition
of consumer fireworks or display fireworks as set forth in this code.''
The DOT regulations do not explicitly define fireworks. However,
like the proposed standard, fireworks may be classified under the DOT
regulations (49 CFR 172.101) as Division 1.1, 1.2, 1.3, or 1.4
explosives, depending on the properties of the composition.
Semiconductive hose. OSHA is proposing to define this term to mean
a hose with an electrical resistance high enough to limit flow of stray
electric currents to safe levels, yet not so high as to prevent
drainage of static electric charges to ground; or a hose of not more
than two megohms resistance over its entire length and of not less than
1,000 ohms per foot. This definition has been modified from the
existing requirement in paragraph (a)(12) which states:
``Semiconductive hose--a hose with an electrical resistance high enough
to limit flow of stray electric currents to safe levels, yet not so
high as to prevent drainage of static electric charges to ground; hose
of not more than 2 megohms resistance over its entire length and of not
less than 5,000 ohms per foot meets the requirement.'' The modification
of the existing text requirement of ``not less than 5,000 ohms per foot
resistance'' to the proposed text of ``not less than 1,000 ohms per
foot resistance'' is recommended in the Petition (Ex. 2-1) and is also
in accordance with the 2001 edition of NFPA 495 (Ex. 2-5) definition.
In addition, after further discussion on this issue, IME maintained
that the use of 1,000 ohms has become the accepted practice in the
industry and it is a better balance in terms of safety to ensure the
hose does not become electrically charged and create a source of static
electricity. A resistance that is too high can cause the hose to become
electrically charged and become a dangerous source of static
electricity. The proposed reduction in resistance to 1,000 ohms creates
a safer work environment by eliminating the possibility of a static
charge that can create a spark at the blast hole. At the same time,
anything less than 1,000 ohms may be conductive, which could create a
current path from the vehicle directly to the drill hole.
Smokeless propellants. This term would be defined by OSHA to mean
solid propellants, commonly called smokeless powders, used in small
arms ammunition, cannon, rockets, and propellant-actuated power
devices. This proposed definition is essentially the same as the
existing definition in paragraph (a)(15). However, the phrase ``in the
trade'' immediately after the phrase ``commonly called smokeless
propellants'' in the existing definition has been eliminated in the
proposed definition because it is unnecessary.
Water gels or slurries. OSHA is proposing that this term be defined
as explosives that contain substantial proportions of water, oxidizers,
and fuel with a cross-linking agent, a gelling, or a thickening agent
added. Water gels or slurries, depending on their properties, are
classified as Division 1.1 explosives or Division 1.5 blasting agents.
This definition is a plain language rewrite of the existing definition
in (a)(18) with no substantive change. The proposed change is
consistent with the definition of water gel in paragraph 3.3.58 of the
2001 edition of NFPA 495 (Ex. 2-5), and is based upon a recommendation
in the Petition (Ex. 2-1).
The definitions in the existing standard for the following terms
have not been included in the proposed standard because the terms are
not used in the proposed standard: Explosive-actuated power devices,
highway, special industrial explosive devices, and DOT specifications.
Existing paragraph (a)(7), which reads: ``Motor vehicle--any self-
propelled vehicle, truck, tractor, semitrailer, or truck-full trailers
used for the transportation of freight over public highways,'' has not
been retained in the proposal and has been replaced with the term
``vehicle'' as part of the plain language rewrite to eliminate the
confusion created in the existing standard which uses several different
terms to describe a vehicle.
The definitions of the following terms have remained the same in
the proposed standard as in the existing standard: Magazine,
propellant-actuated power device, small arms ammunition, small arms
ammunition primers, and special industrial explosive materials.
Paragraph (c) General provisions. As OSHA reviewed the existing
standard, it appeared that many of the provisions contained in other
paragraphs of existing Sec. 1910.109 were more suitably placed under
the general provisions in proposed paragraph (c) since they have broad
applicability. As a result, proposed paragraph (c) contains general
provisions that apply to all explosives activities, including a number
of provisions that were previously located in other paragraphs in the
existing rule.
Paragraph (c)(1) of the proposal addresses explosive hazards.
Paragraph (c)(1)(i) would require the employer to ensure that
explosives are manufactured, transported, sold, handled, and used in a
safe manner. This requirement is essentially the same as and replaces
existing paragraph (b)(1) except that, unlike the existing paragraph,
the requirements for safe manufacture and sale of explosives are
included in the proposed paragraph to be consistent with the scope of
the standard in proposed paragraph (a), as described earlier. In
addition, the proposed paragraph (c)(1)(i) will not apply to storage of
explosives. The reason for this is explained in the OSHA's Authority to
Regulate discussion above.
Paragraph (c)(1)(ii) would require the employer to ensure that only
persons trained in accordance with paragraph (j) of this section handle
or use explosives. Loading and unloading of explosives are examples of
handling, and blasting of slag pockets is an example of the use of
explosives. This is a new requirement that reinforces the importance of
training for all employees engaged in the handling and use of
explosives. This proposed paragraph is based on a recommendation in the
Petition (Ex. 2-1).
Paragraph (c)(1)(iii) would require the employer to ensure that
blasting equipment or explosives that are unsafe due to deterioration,
damage, or other causes are not used, and are disposed of by a person
experienced in the safe disposal of such materials as soon as possible
in accordance with manufacturers' recommendations. This paragraph is
derived from and replaces existing paragraph (c)(5)(v) which deals with
disposal of deteriorated explosives in storage and (e)(2)(iii) which
prohibits the use of deteriorated or damaged explosives or blasting
equipment. The two existing requirements were combined into one
requirement in the proposal covering explosives that may have
deteriorated or been damaged to the point where they have become
unstable and may be unsafe. This requirement is also consistent with
[[Page 18803]]
paragraph 9.6.3 of the 2001 edition of NFPA 495 (Ex. 2-5) for the
disposal of explosive materials.
Paragraph (c)(1)(iv) addresses housekeeping and would require the
employer to ensure that proper housekeeping is performed to prevent
hazardous accumulations of explosives, oxidizers, or fuels and other
sensitizers in, on, or in close proximity to facilities and equipment
containing explosives. This would include any amount of accumulation
that could potentially create a hazardous situation resulting in a fire
or explosion. This is a new requirement and was recommended by the
Petition (Ex. 2-1) to ensure that proper housekeeping is maintained to
prevent an explosion.
Paragraph (c)(1)(v) would require the employer to ensure that all
equipment is maintained in good working condition. In addition,
paragraph (c)(1)(vi) would require a program of systematic maintenance
of equipment be conducted on a regular schedule. Proposed paragraphs
(c)(1)(v) and (vi) contain similar requirements as existing paragraph
(h)(3)(v)(b). However, while the requirements in existing paragraph
(h)(3)(v)(b) only apply to water gels, the requirements in proposed
paragraphs (c)(1)(v) and (vi) would apply to all explosives covered by
the proposed standard. OSHA believes it is important for employee
safety that equipment involved with any explosives, not just water
gels, is maintained in good working condition. The proposed paragraphs
have also been re-written in clearer and more concise language. In
addition, the proposed requirements are generally consistent with the
requirements in paragraph 6.3.5(2) of the 2001 edition of NFPA 495 (Ex.
2-5) for explosives mixing facilities.
Paragraph (c)(1)(vii) would require the employer to ensure that no
person is allowed to enter facilities containing explosives, or to
transport, handle, or use explosives while under the influence of
intoxicating liquors, narcotics, or other drugs that may cause the
person to act in an unsafe manner in the workplace. Due to safety
considerations, OSHA is proposing that such persons be completely
restricted from access to a facility where explosives are manufactured
or stored as well as restricting them from the handling and
transportation of explosives. This requirement is a result of combining
and replacing requirements in existing paragraphs (e)(1)(i) and
(g)(6)(iv) that deal with hazards associated with intoxicating liquors,
narcotics, or other dangerous drugs. This is another example of where
OSHA is proposing to combine two similar requirements into one clearer,
more concise requirement. Since this proposed requirement applies to
all explosives activities, OSHA is proposing to relocate it in the
general requirements paragraph. Existing paragraph (e)(1)(i) also
addresses the hazards of smoking, matches, and flame near explosives
but these issues are dealt with in proposed paragraph (c)(3).
Paragraph (c)(1)(viii) would require the employer to ensure that no
person enters a facility containing explosives or a blast site unless
authorized by the employer to enter the facility. This is a new
requirement that was recommended by the Petition (Ex. 2-1) and is
intended to prevent unnecessary entrance of employees into areas where
explosives are present. Due to the nature of explosives, it is
imperative that only employees necessary to perform required work are
allowed to enter the facility or area containing explosives. In
addition, in the event of an accidental explosion, this requirement
would limit the number of persons exposed to the hazard. The proposal
recognizes the fact that there may be occasions where other persons
have a legitimate need to be in these areas and the proposed wording
gives the employer sufficient flexibility to allow others to enter when
necessary. Such situations may occur when an employer needs to conduct
an environmental site tour, a customer or regulator site tour, an
internal contractor audit, a senior management safety inspection, or
other similar circumstances.
Paragraph (c)(1)(ix) would require the employer to ensure that no
flammable cleaning solvents are present in facilities containing
explosives except where authorized by the employer and where their
presence does not endanger the safety of employees. This is a new
requirement and is based on a recommendation in the Petition (Ex. 2-1).
Due to their potential to create a fire and thus cause an explosion, it
is generally not safe to have flammable cleaning solvents in facilities
containing explosives. There are a number of situations, however, where
the use of such substances may be appropriate. For example, isopropyl
alcohol is used in some instances to clean articles. For storage
magazines, ATF requirements in 27 CFR 555.215 (Ex. 2-4) require
volatile materials be kept at least 50 feet from outdoor magazines.
The requirements in paragraph (c)(2) of the proposed standard
address the electrical hazards associated with explosives. Requirements
for electrical protection are scattered throughout the existing Sec.
1910.109 standard. Those requirements have been consolidated into one
set of requirements in paragraph (c)(2) of the proposed standard. This
will more clearly identify to employers the requirements that must be
followed to prevent fires or explosions due to electrical hazards. OSHA
notes that the requirements in proposed paragraph (c)(2) supplement the
general electrical requirements of 29 CFR part 1910 Subpart S.
Employers must, therefore, follow both the Subpart S requirements for
all explosives facilities and the additional requirements proposed in
paragraph (c)(2).
Paragraph (c)(2)(i) would require the employer to ensure that the
primary electrical supply to any part of the facility (e.g., building,
loading dock, etc.) containing explosives can be disconnected at a safe
remote location away from that part of the facility. A safe remote
location from a part of the facility containing explosives is a
location far enough away to ensure that, if all the explosives in that
part of the facility detonated, a person at the remote location would
not be injured by the explosion. In determining what a safe remote
location is, the employer will need to consider factors such as the
type and amount of explosives present.
This is a new requirement that was recommended by the Petition (Ex.
2-1). It is consistent with the requirements in Sec. 1910.308(c) for
special electrical systems and would require a remote, electrical power
shut-off switch to each part of a facility containing explosives. It is
important that, in the event of an evacuation due to a fire or
explosion in part of a facility, the electrical power to that part of
the facility can be turned off remotely to prevent any further problems
caused by energized circuits such as an electrical short circuit. A
``part of a facility containing explosives'' would include any building
on a site where explosives are manufactured, handled or stored.
Proposed paragraph (c)(2)(ii) deals with safety hazards caused by
electrical storms. During the approach and progress of an electrical
storm, paragraph (c)(2)(ii)(A) would require the employer to ensure
that all explosive manufacturing and blasting operations are suspended,
and paragraph (c)(2)(ii)(B) would require the employer to ensure that
employees located in or near facilities containing explosives, or in
blast sites, are withdrawn immediately to a safe remote location. A
safe remote location in this case would be a location far enough away
from all the explosives in the facility or blast site so that a person
would not be injured if there were an explosion. These proposed
requirements are based on the
[[Page 18804]]
requirements in existing paragraph (e)(1)(vii)(a) which requires
employers to remove employees from the blasting area during the
approach and progress of an electrical storm. However, proposed
paragraph (c)(2)(ii)(A) has been expanded to require the suspension of
explosive manufacturing operations and proposed paragraph (c)(2)(ii)(B)
also requires the immediate withdrawal of employees located near
explosives. This reduces the time the employees are exposed to a
potential hazard. The expansion of the existing requirement is in
recognition that an electrical storm may be hazardous to employees at
facilities and blast sites containing explosives and that employees
need to be kept a safe distance away from a potential explosion. This
is standard practice in the industry and is consistent with a
recommendation in the Petition (Ex. 2-1).
Static electricity as a potential source of ignition is probably
the single greatest concern for facilities and blast sites containing
explosives. The Petition (Ex. 2-1) recommends new requirements for
static electricity protection that would require any new static
electricity protection system to comply with NFPA 77, Static
Electricity (Ex. 2-7). However, it recommended limiting the application
of the requirements only to systems installed after the effective date
of the new standard and would not require an existing manufacturing
facility to install a new system or modify an existing system to meet
the requirements of NFPA 77. IME informed OSHA that certain explosives
are not static-sensitive and do not require protection. IME further
argues that, since explosives manufacturing is subject to the
requirements of OSHA's PSM standard at Sec. 1910.119, areas in an
explosives manufacturing facility where static electricity protection
systems may be needed should already have been identified through the
process hazard analysis requirements of the PSM standard, and adequate
safeguards should have been instituted in accordance with the PSM
standard.
OSHA believes that static electricity protection systems can be
important safety features for facilities containing explosives. The
Agency considered proposing a requirement in paragraph (c) that would
require the employer to ensure that all facilities containing
explosives have appropriate and effective static electricity protection
systems, with suggested methods of compliance found in NFPA 77. The
Agency decided not to propose such language because it lacked
sufficient data and information on the types and effectiveness of
static electricity protection systems. OSHA is seeking additional
information on these issues through public comments.
Issue #3: Do some or all types of facilities containing explosives
require static electricity protection systems? If you think such
protection systems are necessary, please explain when and why they are
necessary. Should different kinds of protection systems be used in
different circumstances, such as in different kinds of facilities,
explosives, or geographic locations? What would be the costs associated
with requiring static electricity protection systems? To what extent
are such protection systems currently being used? What benefit in
employee safety, if any, would be gained from using such protection
systems? Are there any disadvantages to requiring facilities covered by
this standard to install static electricity protection systems?
Proposed paragraph (c)(3) contains requirements that address fire
and explosion hazards. Some of the requirements in paragraph (c)(3) are
new and others are requirements from existing Sec. 1910.109 that have
been consolidated, clarified, and moved to this general fire and
explosion prevention paragraph. The purpose of this consolidation is to
make it easier for users of the standard to know what fire and
explosion prevention regulations are required by combining them into
one paragraph.
Paragraph (c)(3)(i) would require the employer to ensure that
explosives are handled in a manner that minimizes the spillage and
jarring, the generation of explosive dust, and the creation of friction
in or in close proximity to explosives. This is a new requirement that
is based on a recommendation in the Petition (Ex. 2-1) and OSHA
believes it is an important precaution for handling and moving shock
and friction sensitive explosive materials.
Paragraph (c)(3)(ii)(A) would require the employer to ensure that
when a fire is in imminent danger of contact with explosives, employees
do not fight the fire. In addition, paragraphs (c)(3)(ii)(B) and (C)
would require that all employees be moved to a safe area and the fire
be guarded against intruders. These are new requirements based on a
recommendation in the Petition (Ex. 2-1) and are consistent with the
language in paragraph 9.1.6 of the 2001 edition of NFPA 495 (Ex. 2-5).
OSHA considers these to be widely accepted practices within the
industry when dealing with fires near explosive materials. If the fire
is past the point where it can be prevented from reaching explosive
materials, the requirements in proposed paragraph (c)(3)(ii) would help
to ensure that employees are safely away from the explosives in the
event that the fire causes them to detonate.
The hazards of flame, matches, and spark producing devices are
dealt with in proposed paragraph (c)(3)(iii)(A) by requiring the
employer to ensure that no open flames, matches, or spark producing
devices are located within 50 feet of explosives or facilities
containing explosives. As mentioned earlier, ``facilities containing
explosives'' refers to any building on a site where explosives are
manufactured, handled or stored. This requirement is a consolidation of
four requirements in the existing standard that have been combined into
one general requirement and clarified in the proposed rule. Existing
paragraphs (c)(5)(vii), (e)(1)(i), (g)(2)(vi)(d), and (g)(5)(iii) deal
with open flames, matches, or spark producing devices around magazines,
near explosives, near buildings or facilities used to mix blasting
agents, and near blasting agent storage warehouses. The term
``facilities containing explosives'' used in proposed paragraph
(c)(1)(vii) covers all these situations. The 50-foot prohibition is
consistent throughout this proposed rule and, in general, is considered
to be an acceptable safe distance.
Issue #4: OSHA seeks specific comments on the impact proposed
paragraph (c)(3)(iii) would have on the storage and retail sale of
small arms ammunition, small arms primers, and smokeless propellants.
Do open flames, matches, or spark producing devices create a hazard
when located within 50 feet of small arms ammunition, small arms
primers, or smokeless propellants, or facilities containing these
products? Can employers involved in the storage or retail sale of small
arms ammunition, small arms primers, or smokeless propellants prevent
all open flames, matches, or spark producing devices from coming within
50 feet of these products or facilities containing these products? If
not, why not? Should proposed paragraph (c)(3)(iii) use a protective
distance other than 50 feet and, if so, what distance should it be and
why? Should OSHA exclude small arms ammunition, small arms primers, and
smokeless propellants from the requirements of proposed paragraph
(c)(3)(iii)?
Existing paragraphs (c)(5)(vii), (g)(2)(vi)(d), and (g)(5)(iii)
also deal with smoking and the hazards of firearms near storage
magazines and blasting agent mixing plants. The proposed standard
separates these two concepts and deals with them as individual
requirements in proposed paragraphs
[[Page 18805]]
(c)(3)(iii)(B) and (C). Proposed paragraph (c)(3)(iii)(B) would require
the employer to ensure that smoking is only permitted in authorized
smoking areas. This requirement is a change from the existing
requirements that allow smoking as long as it is done more than 50 feet
away from particular activities or operations. Under the proposed
requirement, the employer would have to ensure that smoking areas are a
safe distance from explosives.
Proposed paragraph (c)(3)(iii)(C) would require the employer to
ensure that no person carries firearms, ammunition, or similar articles
in facilities containing explosives or blast sites except as required
for work duties. This proposed requirement is different from the
existing requirements which prohibit firearms within 50 feet of storage
magazines and blasting agent mixing plants. The proposed requirement
would prohibit firearms at facilities containing explosives and at
blast sites. In addition, as recommended by the Petition (Ex. 2-1), the
proposed requirement would prohibit ammunition and similar articles
along with firearms. The requirement would allow firearms, ammunition,
or similar articles to be carried by guards as needed to perform their
work duties.
Paragraph (c)(3)(iii)(D) would require the employer to ensure that
vehicles are not refueled within 50 feet of a facility containing
explosives or a blast site. This is a new requirement based on a
recommendation in the Petition (Ex. 2-1). A fire or explosion caused by
refueling a vehicle could in turn cause explosives to explode if they
are too near to the refueling vehicle. Proposed paragraph
(c)(3)(iii)(D) addresses this hazard by requiring a safe 50-foot
distance between explosives and refueling vehicles.
Proposed paragraph (c)(4) covers general maintenance and repairs.
These requirements deal with the possibility of maintenance or repair
work being a potential cause of an explosion. Paragraph (c)(4)(i) would
require the employer to ensure that, before any maintenance or repairs
are started in or in close proximity to any facility containing
explosives or a blast site, the immediate area surrounding the
maintenance or repair work is free of explosives, including residues
and dusts containing explosives. The removal of explosives and the
cleaning of the surrounding area is a basic precaution necessary to
prevent an explosion. Maintenance and repair work may create sparking
and may require the use of welding equipment. Such activities could be
a source of ignition for explosives and their remnants, including
residues and dusts. This proposed safety requirement is based on a
recommendation in the Petition (Ex. 2-1). OSHA also believes such
cleaning around maintenance or repair work to be standard industry
practice.
The proposal does not specify a distance around the maintenance or
repair work that must be cleaned. The employer must make the
determination of what distance is safe based on the situation. For hot
work operations, whether done for maintenance, repair, or for any other
reason, the employer must also comply with proposed paragraph
(c)(4)(ii), which requires the employer to ensure that the fire
prevention and protection requirements in Sec. 1910.252(a) and
proposed paragraph (c)(3)(iii) of this section are implemented prior to
beginning hot work operations. The requirements in Sec. 1910.252(a)
provide general rules for welding operations. In addition, proposed
paragraph (c)(3)(iii) would require that any hot work operations, since
they are fire hazards, be performed 50 feet or more away from
explosives or facilities containing explosives. Therefore, hot work
operations may not be performed inside or within 50 feet of facilities
containing explosives.
One area that continues to create confusion in the explosives
industry is labeling requirements. The existing Sec. 1910.109 standard
does not contain labeling requirements. However, labels are required by
the Department of Transportation (DOT) for the transportation of
packages or containment devices that contain hazardous materials
meeting one or more of DOT's hazard class definitions (see 49 CFR part
172, subpart E) (Ex. 2-8). In addition, OSHA's Hazard Communication
Standard, 29 CFR 1910.1200, requires labels for hazardous chemicals.
Specifically, Sec. 1910.1200(f)(1) requires the chemical manufacturer,
importer, or distributor to ensure that each container of hazardous
chemicals is labeled, tagged, or marked prior to leaving the workplace.
The information must contain the identity of the hazardous chemical(s),
appropriate hazard warnings, and the name and address of the chemical
manufacturer, importer, or other responsible party. In addition, Sec.
1910.1200(f)(5) requires the employer to ensure that each container of
hazardous chemicals in the workplace is labeled, tagged, or marked with
information about the identity and hazards of the chemicals in the
containers. In both cases, the requirements are performance-oriented
and do not specify the design or appearance of the label.
In an effort to clarify the labeling requirements for explosives,
OSHA is clarifying in proposed paragraph (c)(5)(i) that the employer
must communicate hazards associated with explosives in accordance with
the requirements of the Hazard Communication Standard, Sec. 1910.1200.
This simply clarifies that packages of explosives are required to be
labeled in accordance with Sec. 1901.1200. In addition, the proposed
requirement specifies that, where labeling of explosives is required
under Sec. 1910.1200, Globally Harmonized System of Classification and
Labeling of Chemicals (GHS) (Ex. 2-2) labels must be used for the
different divisions of explosives. This makes the labeling requirements
in the proposed standard more consistent with the DOT labeling
requirements. To make it easier to comply with the proposed label
requirements, in addition to describing the contents of the labels,
OSHA has proposed to include pictures of the required GHS labels. The
labels would have a signal word, a hazard statement, and either a
division designation or a pictogram. The pictogram would be black on a
white background with a red frame sufficiently large to be clearly
visible.
In practical terms, the label required by the proposed standard
depends on the status of the container, package, box, or bag. For
transport containers, a GHS label would not be required where a DOT
label is used (see GHS document paragraph 1.4.10.5.1) (Ex. 2-2). Thus,
a truck containing explosives would be placarded on the outside
according to DOT requirements, and all transport containers inside the
truck would need to be provided with a DOT label. Any packages, boxes,
or bags within the transport containers in the truck would require
labels in accordance with OSHA's Hazard Communication standard (Sec.
1910.1200) and proposed paragraph (c)(5)(i) would require the labels to
be GHS. In addition, all in-plant containers, packages, boxes, or bags
would be required to follow Sec. 1910.1200 requirements and thus would
be required to have the GHS labels required by proposed paragraph
(c)(5)(i).
In effect, proposed paragraph (c)(5)(i) is not adding a label
requirement, but merely specifying the type of label that must be
present for compliance with Sec. 1910.1200. Labels required for
compliance with Sec. 1910.1200 and those required by DOT will still be
necessary.
Issue #5: This proposed paragraph does not contain a phase-in
period of time for compliance with the GHS label requirements. The
Agency seeks input
[[Page 18806]]
on whether employers need a phase-in period to comply with the new
requirement of proposed paragraph (c)(5)(i) that requires labels be GHS
labels? If so, how long should the phase-in period be to allow
employers sufficient time to become familiar with and have the
capability to provide these labels on containers?
In addition, OSHA is aware that a United Nations Sub-Committee is
considering adding unstable explosives to the GHS on the classification
of explosives. They claim that even though unstable explosives are
precluded from transport, they may occur in the workplace and need to
be classified so that they can be regulated. The Agency seeks
information on unstable explosives in the commercial explosives
industry, where these unstable explosives occur, and what the hazards
are? Are there hazards from unstable explosives that OSHA should
regulate?
Proposed paragraph (c)(5)(ii) incorporates the already existing
requirement that the employer ensure that DOT markings, placards, and
labels are retained in accordance with Sec. 1910.1201. The purpose of
proposed paragraph (c)(5)(ii) is to clarify employer requirements
concerning the use of DOT markings, placards and labels on packages,
vehicles, and freight cars or containers containing explosives. Under
Sec. 1910.1201, any employer who receives a package of explosives
which is required to be marked, labeled, or placarded in accordance
with DOT's hazardous materials regulations (49 CFR parts 171 through
180) must retain those markings, labels, and placards on the package
until the packaging is sufficiently cleaned of residue and purged of
vapors to remove any potential hazards. Section 1910.1201 also requires
that any employer who receives a vehicle, freight car, or container
that is required to be marked or placarded in accordance with DOT's
hazardous materials regulations must retain those markings and placards
on the vehicle, freight car, or container until the explosives that
require the marking or placarding are sufficiently removed to prevent
any potential hazards. However, note that under Sec. 1910.1201(d), for
non-bulk packages containing explosives that will not be reshipped, the
requirements of Sec. 1910.1201 are met if a label or other acceptable
marking is affixed in accordance with the Hazard Communication standard
(see Sec. 1910.1201(d)). Under Sec. 1910.1201(e), non-bulk packaging
is defined at 49 CFR 171.8 as packaging which has: (1) a maximum
capacity of 119 gallons (450 L) or less as a receptacle for a liquid;
(2) a maximum net mass of 882 pounds (400 kg) or less and a maximum
capacity of 119 gallons (450 L) or less as a receptacle for a solid; or
(3) a water capacity of 1000 pounds (454 kg) or less as a receptacle
for a gas as defined in 49 CFR 173.115.
Paragraph (d) Storage of ammonium nitrate. As discussed in the
preamble above, ``OSHA's Authority to Regulate,'' OSHA is proposing to
withdraw the provisions in existing paragraph (c) for the storage of
explosives because they are preempted by ATF's regulations covering the
storage of explosives (see 27 CFR part 555). In the proposed standard,
OSHA proposes to continue to regulate the storage of ammonium nitrate
(which is not an explosive) and the storage of small arms ammunition,
primers, and smokeless propellants (which are not preempted by ATF's
regulations).
Proposed paragraph (d) sets forth requirements for the storage of
ammonium nitrate. The existing requirements for ammonium nitrate
storage in Sec. 1910.109(i) are based on the 1970 edition of NFPA 490.
The proposed requirements are based on the 2002 edition of NFPA 490
(Ex. 2-6). The Petition (Ex. 2-1) did not recommend any changes to the
existing requirements for the storage of ammonium nitrate.
OSHA is proposing to remove requirements from existing paragraph
(i)(1) that are either unnecessary or outdated. Specifically, the
requirements in existing paragraphs (i)(1)(i)(b) and (c) would be
removed. Existing paragraph (i)(1)(i)(b) states that the regulations
addressing the storage of ammonium nitrate do not apply to the
transportation of ammonium nitrate. OSHA has concluded that this
requirement is inappropriate because provisions covering the storage of
ammonium nitrate are clearly different from provisions covering the
transportation of ammonium nitrate.
Existing paragraph (i)(1)(c) states that paragraph (i) covering the
storage of ammonium nitrate does not apply to the storage of ammonium
nitrate under the jurisdiction of and in compliance with the
regulations of the U.S. Coast Guard at 46 CFR parts 146 to 149. OSHA
proposes to eliminate this requirement from the proposed standard
because it is inaccurate and not related to the storage of ammonium
nitrate. Parts 146 and 149 of the U.S. Coast Guard regulations are
reserved parts that do not contain any regulations. Parts 147 and 148
contain regulations covering the transportation of hazardous materials
on ships. In particular, 46 CFR 148.03-11 and 33 CFR 126.28 describes
stowage requirements for Ammonium Nitrate onboard vessels and
facilities respectively. Stowage is the general term used for
``storage'' onboard ships and waterfront facilities under the
regulations found in 46 CFR part 148 and 33 CFR part 126.
Existing paragraph (i)(1)(ii)(b) states that the standards for
ammonium nitrate (nitrous oxide grade) are those found in the
``Specifications, Properties, and Recommendations for Packaging,
Transportation, Storage, and Use of Ammonium Nitrate,'' available from
the Compressed Gas Association, Inc., which is incorporated by
reference as specified in Sec. 1910.6. The purpose and intent of the
requirement is not clear. First, this existing paragraph merely
references a document containing standards for nitrous oxide grade
ammonium nitrate. It does not explain how such standards should be
applied. Second, nitrous oxide grade ammonium nitrate is not used in
the manufacture of explosives. It is not necessary to provide
references in Sec. 1910.109 for grades of ammonium nitrate that are
not used in the explosives industry. Since this requirement is both
unnecessary and confusing, OSHA proposes to eliminate it and its
associated incorporation by reference in the proposed standard.
Proposed paragraph (d)(1) sets out the applicability of the
requirements for the storage of ammonium nitrate. Proposed paragraph
(d)(1)(i) states that proposed paragraph (d) applies to the storage of
ammonium nitrate in quantities of 1,000 pounds (454 kg) or more to be
used in the manufacture of explosives. Proposed paragraph (d)(1)(i)
replaces existing paragraph (i)(2)(i) with a plain-language re-write to
clarify that OSHA intends the requirements to apply to ammonium nitrate
that will be used in the manufacture of explosives and that the
requirements apply specifically to the storage of ammonium nitrate.
OSHA is retaining the 1,000 pounds or more quantity for inclusion in
proposed paragraph (d)(1)(i). Ammonium nitrate in quantities of 1,000
pounds or more must be stored according to proposed paragraph (d). This
designated limit is consistent with paragraph 1.3 of the 2002 edition
of NFPA 490 (Ex. 2-6) and is considered an acceptable threshold in the
explosives industry.
Issue #6: OSHA seeks specific comments on whether the storage
requirements for ammonium nitrate should be triggered by specific
quantities. If so, please explain what those quantities should be and
why.
Proposed paragraph (d)(1)(ii) revises existing paragraph
(i)(1)(i)(a) to clarify that paragraph (d) does not apply to ammonium
nitrate that can be classified
[[Page 18807]]
as an explosive. As discussed earlier, the storage of ammonium nitrate
that can be classified as an explosive would be covered by the storage
requirements for explosives in ATF's regulations (27 CFR part 555).
Proposed paragraph (d)(2) addresses ammonium nitrate stored in
buildings. Most of the requirements in the paragraph are consistent
with paragraphs in the existing standard and are also consistent with
the 2002 edition of NFPA 490. Any proposed requirements that differ
from the existing requirements are discussed below.
Paragraph (d)(2)(i) states that buildings or structures constructed
and used to store ammonium nitrate since before August 27, 1971, and
that do not meet the requirements of proposed paragraph (d)(2), are
deemed to be acceptable for the continued storage of ammonium nitrate,
provided such use does not endanger the safety of employees. To fall
within this exception, the building or structure must have been used to
store ammonium nitrate from before August 27, 1971, until the effective
date of this proposed standard. This proposed paragraph is consistent
with and would replace existing paragraph (i)(2)(iii)(e) which allows
continued use of buildings or structures built and used to store
ammonium nitrate prior to the August 27, 1971 effective date of the
existing standard (36 FR 10466), provided that such use does not
endanger the safety of employees.
Paragraph (d)(2)(ii)(A) would require the employer to ensure that
ammonium nitrate is stored in a manner that minimizes as far as
possible fire and explosion hazards, including exposure to toxic vapors
from burning or decomposing ammonium nitrate. This proposed requirement
is similar to existing paragraph (i)(2)(ii) except that it covers all
quantities of ammonium nitrate of 1,000 pounds or more stored in a
building, whereas existing (i)(2)(ii) and paragraph 4.1.4 of the 2002
edition of NFPA 490 limit the requirement to ``large quantity storage''
of ammonium nitrate.
It is not clear what amount of ammonium nitrate would be considered
a large quantity. Since ``large quantity'' is undefined in NFPA 490,
OSHA believes it is necessary and appropriate to propose a more finite
quantity to assure adequate employee protection. As a result, OSHA is
proposing to apply this requirement to all quantities of ammonium
nitrate covered by proposed paragraph (d). Other minor revisions have
been added that are consistent with the plain language re-write and do
not change the intent of the existing standard.
Paragraphs (d)(2)(ii)(B) and (d)(2)(ii)(C) would require the
employer to ensure that storage buildings are not over one story in
height above ground level and storage buildings do not have basements
unless the basements are open on at least one side. These proposed
requirements are the same as and replace the requirements in existing
paragraph (i)(2)(iii)(a). To be consistent with maintaining one
requirement per paragraph, the proposal replaces the requirements in
existing paragraph (i)(2)(iii)(a) with two separate paragraphs. Both of
these proposed requirements are similar to paragraph 4.2.1 of the 2002
edition of NFPA 490 (Ex. 2-6).
Paragraph (d)(2)(ii)(D) would require the employer to ensure that
storage buildings are adequately ventilated to prevent unsafe heat or
fume accumulations. This is essentially the same as existing paragraph
(i)(2)(iii)(b), and paragraph 4.2.2 of the 2002 edition of NFPA 490
(Ex. 2-6) except that it does not contain the option that the building
be constructed to be self-ventilating in the event of a fire. The
purpose of the self-ventilation requirement in existing paragraph
(i)(2)(iii)(b) is unclear. OSHA understands ``self-ventilating'' to
mean the building is equipped with automatic (smoke or heat operated)
roof vents, presumably to operate prior to fire department arrival. Use
of these types of vents, however, has been somewhat controversial over
the years for general commodity storage. Existing paragraph
(i)(4)(i)(a) also deals with ventilation for warehouses that store bulk
ammonium nitrate. In OSHA's continued effort in this proposed rule to
combine duplicate requirements in the existing standard, OSHA is
combining existing paragraphs (i)(2)(iii)(b) and (i)(4)(i)(a) in
proposed paragraph (d)(2)(ii)(D).
Issue #7: In proposed paragraph (d)(2), OSHA is requiring that the
ventilation in storage buildings should prevent the accumulation of
heat or fumes that could cause a fire rather than be designed to
ventilate the storage building once a fire has started. OSHA requests
specific comments on this issue, including the proposed approach
emphasizing pre-fire safety rather than safety during a fire, and
whether self-ventilation should be required for buildings or structures
that store ammonium nitrate.
Paragraph (d)(2)(ii)(E) would require the employer to ensure that
storage building walls are constructed to meet a four-hour fire
resistant rating whenever they face and are within 50 feet of a
combustible building, forest, pile of combustible materials, or other
similar hazards. This proposed paragraph also would allow that, in lieu
of a four-hour fire resistant wall, other equivalent means of exposure
protection may be used. This proposed requirement is essentially the
same as and replaces requirements in existing paragraph (i)(2)(iii)(c)
except that ``fire-resistive construction'' was changed to ``four-hour
fire resistant rating'' to be consistent with the 2002 edition of NFPA
490. The term ``four-hour fire resistant rating'' is derived from
paragraph 4.2.3 in NFPA 490-2002, which requires a Type I wall for the
exposed storage wall, and references NFPA 220, Standard on Types of
Building Construction (Ex. 2-20), for a description of the wall to be
used. Based on Table 3-1 of NFPA 220, OSHA has determined that the
appropriate and most protective wall to be used is a four-hour fire
resistant wall for protection against combustible materials.
Paragraph (d)(2)(ii)(F) would require the employer to ensure that
roof coverings of buildings or structures used to store ammonium
nitrate, at a minimum, afford a light degree of fire protection to the
roof deck, do not slip from position, and do not present a flying brand
hazard. This proposed requirement is equivalent to and replaces the
similar requirement in existing paragraph (i)(2)(iii)(c) except that
OSHA proposes to delete the reference to the NFPA standard contained in
existing paragraph (i)(2)(iii)(c) and include a more performance based
requirement instead.\1\ Circumstances may differ from facility to
facility. OSHA has considered the relevant NFPA standards and has
determined that a Class C (as defined in NFPA 256-2003) or better roof
would meet the requirements of this proposed provision.
---------------------------------------------------------------------------
\1\ Existing paragraph (i)(2)(iii)(c) references NFPA 203M-1970
(Ex. 2-14) to determine whether the roof meets a rating of Class C
or better. This is an incorrect reference since NFPA 203M-1970 does
not define a Class C roof covering. NFPA 256 actually provides the
test methods to determine the rating of a roof. The 2000 edition of
NFPA 203 (NFPA 203M was re-designated as NFPA 203) (Ex. 2-15)
references paragraphs 3.1.1 and 3.1.5 in NFPA 256 for the test
methods to determine the classification of roof coverings.
---------------------------------------------------------------------------
Issue #8: Does paragraph (d)(2)(ii)(F) as proposed provide adequate
guidance for employers to follow in providing a safe roof for buildings
or structures used to store ammonium nitrate?
Proposed paragraph (d)(2)(ii)(G) would require the employer to
ensure that storage buildings do not exceed a height of 40 feet unless
constructed of noncombustible material or adequate
[[Page 18808]]
facilities for fighting a roof fire are available. This proposed
requirement is the same as and replaces existing paragraph (i)(4)(i)(b)
except that the proposed requirement covers the storage of bulk
ammonium nitrate and the storage of ammonium nitrate in bags, drums or
other containers whereas the existing requirement only covers the
storage of bulk ammonium nitrate. The proposed paragraph has also been
re-written in clearer language. In addition, it is consistent with
paragraph 6.1.2 of the 2002 edition of NFPA 490 (Ex. 2-6).
Paragraph (d)(2)(ii)(H) would require the employer to ensure that
all flooring is of noncombustible material. Paragraph (d)(2)(ii)(I)
would require the employer to ensure that all flooring is protected
against impregnation by ammonium nitrate. Paragraph (d)(2)(ii)(J) would
require the employer to ensure that no flooring has drains or piping
into which any molten ammonium nitrate could flow and be confined in
the event of fire. These proposed requirements are the same as and
replace existing paragraph (i)(2)(iii)(d) except that they have been
separated into individual provisions and re-written in clearer and more
concise language. The proposed requirements are also consistent with
paragraph 4.2.4 of the 2002 edition of NFPA 490 (Ex. 2-6).
Paragraph (d)(2)(ii)(K) would require the employer to ensure that
storage buildings are dry and free from water seepage. This proposed
requirement has been re-written in clearer and more concise language
and replaces existing paragraph (i)(2)(iii)(f). Proposed paragraph
(d)(2)(ii)(K) is also consistent with paragraph 4.2.6 of the 2002
edition of NFPA 490 (Ex. 2-6).
Paragraph (d)(2)(ii)(L) would require the employer to ensure that
unauthorized persons do not enter an ammonium nitrate storage area.
This proposed requirement is the same as and replaces existing
paragraph (i)(6)(iii) except that it has been re-written in more
succinct and understandable language.
Paragraph (d)(2)(ii)(M) would require the employer to ensure that
ammonium nitrate and storage buildings containing ammonium nitrate are
located at a safe distance from readily combustible fuels. This
proposed requirement is the same as and replaces existing paragraph
(g)(5)(v) except that it has been re-written in clearer language. The
proposed paragraph is also consistent with paragraph 5.5.2 of the 2001
edition of NFPA 495 (Ex. 2-5). OSHA believes that it is important for
employee safety to keep combustible fuels away from all ammonium
nitrate, not just piles of ammonium nitrate (as in the existing
requirement).
Paragraph (d)(2)(ii)(N) would require the employer to ensure that
in areas where lightning storms are prevalent, lightning protection
systems are provided. Lightning protection systems meeting the safety
requirements found in Appendix K of National Fire Protection
Association (NFPA) 780-2004, Standard for the Installation of Lightning
Protection Systems), or other equally protective criteria would meet
the requirements of this provision.
This proposed requirement is similar to and replaces existing
paragraph (i)(6)(ii) except that the reference to NFPA has been
updated, as discussed below, and compliance options broadened.
OSHA found the requirement in existing paragraph (i)(6)(ii) may be
confusing and difficult for employers to comply with for two reasons.
First, the phrase ``in areas where lightning storms are prevalent'' is
somewhat vague. Without clarification of where these areas are, the
Agency believes this requirement may be difficult to comply with and
difficult for OSHA to enforce. Second, the existing requirement also
refers to NFPA 78-1968, Lightning Protection Code (Ex. 2-11), which
appears to be problematic as well as outdated. When reviewing this NFPA
document, OSHA found it difficult to determine how lightning protection
for explosives is covered by NFPA 78-1968. In the NFPA 78-1968
document, Section 20, paragraph 2001 states that the code does not
apply to ``explosives manufacturing buildings and magazines.''
The current Lightning Protection Code, NFPA 780-2004 (Ex. 2-10) (in
1992 the numerical designation of the code was changed from NFPA 78 to
NFPA 780), is similarly confusing in its application to explosives. The
scope of NFPA 780-2004 states in paragraph 1.1.2(1) that the document
does not cover lightning protection system installation requirements
for explosives manufacturing buildings and magazines. However, in an
explanatory note, the reason given for the exclusion is that these
structures need special