[Federal Register: June 7, 2007 (Volume 72, Number 109)][Rules and Regulations][Page 31453-31457]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jn07-11]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
Interpretation of OSHA's Standard for Process Safety Management
of Highly Hazardous Chemicals
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Interpretation.
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SUMMARY: This Notice constitutes the Occupational Safety and Health
Administration's official interpretation and explanation of the phrase
"on site in one location" in the "Application" section of OSHA's
Process Safety Management of Highly Hazardous Chemicals standard.
("PSM").
DATES: Effective Date: June 7, 2007.
FOR FURTHER INFORMATION CONTACT: For general information contact: Kevin
Ropp, Director, Office of Communications, U.S. Department of Labor,
Occupational Safety and Health Administration, Room N-3647, 200
Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-
1999; fax (202) 693-1635. For technical information contact: Mike
Marshall, PSM Coordinator, Directorate of Enforcement Programs, U.S.
Department of Labor, Occupational Safety and Health Administration,
Room N-3119, 200 Constitution Avenue, NW., Washington, DC 20210;
telephone: (202) 693-1850; fax (202) 693-1681.
SUPPLEMENTARY INFORMATION: This Federal Register Notice addresses
OSHA's interpretation of the term "on site in one location" in the
scope and application section of the PSM standard. As set forth below,
OSHA interprets this term to mean that the standard applies when a
threshold quantity (TQ) of a highly hazardous chemical (HHC) exists
within contiguous areas under the control of an employer, or group of
affiliated employers, in any group of vessels that are interconnected,
or in separate vessels that are located in such proximity that the HHC
could be involved in a potential catastrophic release, as indicated in
the regulatory definition of "process." \1\
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\1\ The term "contiguous" has been found to mean either
"nearby" or "in actual contact" in terms of the application of
an OSHA standard. Empire Company, Inc., 17 BNA OSHC 1990 (Docket No.
93-1861, 1997), affirmed 136 F.3d 873 (1st Cir. 1998). See also 136
F.3d at 878, citing Black's Law Dictionary 320 (6th ed. 1990) ("In
close proximity; neighboring * * *"). References to "contiguous"
areas in this Notice carry the same meaning.
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A. Introduction
The meaning of "on site in one location" was at issue in a recent
case before the Occupational Safety and Health Review Commission.
Motiva Enterprises, 21 BNA OSHC 1696 (OSHRC No. 02-2160, 2006). In that
decision the Review Commission queried whether that language was meant
to limit in some way the applicability of the standard to a highly-
hazardous-chemical process. In the absence of an authoritative
interpretation, the Review Commission decided it could not determine
that the cited activities were "on site" and "in one location," and
it vacated the citations. Recognizing that OSHA is the policymaking
actor under the Occupational Safety and Health Act, it left it to the
agency to decide "in the first instance * * * the meaning of these
terms and offer an `authoritative interpretation.' " It also said that
"[a]ny such subsequent interpretation" would be reviewed in a future
case "under `standard deference principles.' "
The PSM standard provides, in pertinent part:
(a) Application. (1) This section applies to the following:
(i) A process which involves a chemical at or above the
specified threshold quantities listed in appendix A to this section;
(ii) A process which involves a flammable liquid or gas (as
defined in Sec. 1910.1200(c) of this part) on site in one location,
in a quantity of 10,000 pounds (4535.9 kg) or more * * * .,
29 CFR 1910.119(a).
The standard defines "process" to mean:
* * * any activity involving a highly hazardous chemical including
any use, storage, manufacturing, handling, or the on-site movement
of such chemicals, or combination of these activities. For purposes
of this definition, any group of vessels which are interconnected
and separate vessels which are located such that a highly hazardous
chemical could be involved in a potential release shall be
considered a single process.,
29 CFR 1910.119(b).
The standard defines "highly hazardous chemical" to mean:
* * *a substance possessing toxic, reactive, flammable, or
explosive properties and specified by paragraph (a)(1) of this
section.
Ibid.
The standard thus provides regulatory definitions for the application
provision's key terms, "process" and "highly hazardous chemical."
It omits, however, any definition for the phrase "on site in one
location" that is included in subsection (a)(1)(ii) of the Application provision.
In providing this Notice's clarification of the intended coverage
of the standard, OSHA has determined that, considering the history,
language, structure and purposes of the PSM standard, it is abundantly
clear that there is considerable overlap between the term "on site in
one location" and the definition of "process" adopted in the final
version of the standard. In addition, "on site in one location"
serves the independent function of excluding coverage where the HHC
threshold would be met only if all amounts in interconnected or
proximate vessels or pipes were aggregated but some of the amounts
needed to meet the threshold quantity are outside the perimeter of the
employer's facility. For example, trucks and pipelines outside the
boundaries of the employer's property, which may be regulated by the
Department of Transportation in any event, are excluded.
B. The Regulatory History
1. Notice of Proposed Rulemaking, July 17, 1990 (NPRM)
In response to several major disasters in both the United States
and abroad, OSHA began to develop a comprehensive standard addressing
hazards related to releases of HHCs in the workplace. On July 17, 1990,
OSHA published a Notice of Proposed Rulemaking (NPRM) at 55 FR 29150.
Approximately four months later (November 15, 1990), Section 304 of the
Clean Air Act Amendments (CAAA) of 1990, Public Law 101-549, required
the Secretary of Labor, in coordination with the Administrator of the
Environmental Protection Agency, to promulgate, pursuant to the
Occupational Safety and Health Act of 1970, a chemical process safety
standard to prevent accidental releases of hazardous chemicals that
could pose a threat to employees. The Act also directed EPA to issue a
rule addressing the hazards to the public of releases of such chemicals
into the atmosphere and to coordinate the provisions with comparable
OSHA requirements, (42 U.S.C. 7412(r)(7)).
The NPRM's scope and application section included the following
statement of the standard's intended application:
(b) Application. (1) This section applies to the following* * *
(i) Processes* * *
(ii) Processes which involve flammable liquids or gases (as
defined in Sec. 1910.1200(c) of this part) onsite in one location
in quantities of 10,000 lbs or more* * *,
55 FR 29163.
Under the proposal the term "process" would be defined as:
* * *any activity conducted by an employer that involves a
highly hazardous chemical including any use, storage, manufacturing,
handling, or movement of a highly hazardous chemical, or a
combination of these activities.
Ibid.
Thus, the NPRM applied to processes in the plural, and the
definition of "process" did not include any language indicating a
geographic limit to what constituted a covered "activity." The
subsection on application to flammable liquids and gases included "on
site in one location," without explaining the phrase. The subsection
on application to listed hazardous chemicals lacked any parallel
language.
2. The Rulemaking Record and Hearing Process
In response to the NPRM, OSHA received over 175 written comments.
OSHA's review of the comments revealed a significant issue of how TQs
of HHCs were to be calculated. Because OSHA had used the plural term
"processes" in the NPRM, which could suggest multiple processes in
separate locations, some stakeholders expressed concern as to whether
OSHA intended TQs be calculated by an aggregate of all HHC present at
an employer's facility, or by the amount of an HHC present in one
particular process. (See e.g., Exs. 3-104, 109, 112, 119, 125, 126).\2\
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\2\ All citations to either exhibits or transcripts in this
instruction are references to the PSM Standard's Rulemaking Docket,
No. S026, available at http://www.regulations.gov.
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Recognizing this confusion, OSHA, in a Federal Register notice of
November 1, 1990,\3\ clarified its intent that TQs would be calculated
by process or location, and not on a facility-wide basis:
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\3\ This Federal Register notice also announced additional
hearings in Houston, TX.
OSHA did not intend that facilities aggregate quantities of
covered chemicals. The important factor is the amount of a listed
chemical in a plant that could be released at one point in time. If
the total amount of a listed chemical in a plant exceeds its
threshold quantity of 1000 pounds, for example, but the chemical is
used in small quantities around the plant and is not concentrated in
one process or in one area, OSHA believes that a catastrophic release
of the entire material would be unlikely.
55 FR 46074, 46075) (emphasis added).
At hearings on the proposal held in Washington, DC and Houston, TX, and
in additional written comments, stakeholders almost uniformly accepted
OSHA's explanation of its intent that TQs of HHCs were to be calculated
by individual process and not through aggregation of all processes
present in a facility. Several major trade associations and refinery
employers concurred with OSHA's conclusions, (Tr. 1113, 2591-92, 3038,
3419, 3192; Exs. 3-165, 3-170). Commenters urged that this aggregation
principle should apply regardless of the type of HHC, (e.g., Tr. 1113,
3038, 3192; Ex.-109).
In addition, during the rulemaking, commenters noted that HHCs
concentrated in a single interconnected process should be subject to
the requirements of the PSM standard, (Ex. 3-165, 3-166). The concept
of interconnectedness was integral to American Petroleum Institute
(API) 750, Management of Process Hazards, an industry consensus
document on managing process hazards. This was one of the industry
practices OSHA referenced when developing the PSM Standard, (55 FR
29159). Specifically, API 750 defined a "facility" and "process" as
follows:
1.4.4 A facility comprises the buildings, containers, and
equipment that could reasonably be expected to participate in a
catastrophic release as a result of their being physically
interconnected or of their proximity and in which dangerous
chemicals are used, stored, manufactured, handled, or moved.
1.4.5 Process refers to the activities that constitute use,
storage, manufacture, handling, or movement in all facilities that
contain dangerous substances.
3. The Final Rule
On February 24, 1992, OSHA promulgated the final PSM standard, (57
FR 6356). With respect to TQ calculations, OSHA again reiterated its
November 1, 1990 statement of intent, noting that it "continues to
believe that the potential of a catastrophic release exists when a
highly hazardous chemical is concentrated in a process." OSHA also
stated that it "agrees with those commenters" who argued that
"highly hazardous chemicals in less than threshold quantities
distributed in several processes would not present as great a risk of
catastrophe as the threshold quantity in a single process." (57 FR
6364).
To reflect its agreement with the commenters and API 750 on this
point, OSHA modified the definition of "process" in the final rule.
First, the "Application" provision was stated in terms of a
"process" rather than "processes." Next, as set forth above, the
final standard augmented the NPRM's definition of "process" by adding
language to clarify that "interconnected and nearby vessels containing
a highly hazardous chemical would be considered part of the single
process and the quantities of the chemical would be aggregated to
determine if the threshold quantity of the chemical is exceeded". Id.,
at 6372 (emphasis added). OSHA also added the term "on-site movement"
to the list of covered activities. Finally, OSHA specifically stated
that the term "process," when used in conjunction with the
application section of the standard, establishes the intent of the
standard, (57 FR 6372). As a result, OSHA intended that the term
"process" be read in conjunction with the terms "on site in one
location" when evaluating the applicability of PSM. There was no
further preamble discussion, however, on what, if anything, "on site
in one location" was meant to convey.
The regulatory history establishes several key points. First, OSHA
intended "process" to be the central term elucidating the standard's
coverage. Second, employers need not aggregate all amounts of a
chemical in an entire facility to determine whether a threshold
quantity is present. Instead, only amounts in a group of vessels that
are interconnected, or in vessels that are separate but sufficiently
close together that they could be involved in the same release, are to
be aggregated. Finally, the agency intended no distinction in the
application of these principles between listed chemicals subject to 29
CFR 1910.119(a)(i) and flammables subject to 29 CFR 1910.119(a)(ii).
4. The Environmental Protection Agency (EPA) Risk Management Program
(RMP)
In addition to directing OSHA to develop the PSM standard, Congress
directed EPA to address the hazards of catastrophic releases of highly
hazardous chemicals to the atmosphere, (42 U.S.C. 7412(r)). EPA issued
its rule on June 20, 1996, following promulgation of OSHA's PSM
standard, (61 FR 31667). While the definition of "process" in the
EPA-prescribed RMP is identical to the PSM definition, RMP does not use
the term "on site in one location". Instead, RMP uses the term
"stationary source," which is defined, in relevant part, as "any
buildings, structures, equipment, installations, or substance emitting
stationary activities which belong to the same industrial group, which
are located on one or more contiguous properties, which are under the
control of the same person (or persons under common control), and from
which an accidental release may occur." (40 CFR 68.3). This is the
same definition used by Congress. (42 U.S.C.A 7412(r)(2)(c)).
C. The Regulatory Language and Structure
As noted above, the Secretary construes the phrase "on site in one
location" to refer to contiguous areas under the control of an
employer, or group of affiliated employers, and, within that area to a
group of vessels that are interconnected, or separate but sufficiently
near each other that they could be involved in a catastrophic release.
This interpretation accords with the ordinary dictionary meanings of
"site" and "location" and with the context of the entire
application provision and the related regulatory definitions for
"process" and "highly hazardous chemical." In interpreting the
phrase, moreover, the Secretary has concluded that to give meaning to
all the words of the standard, a certain degree of redundancy is
inevitable; and that it would not be faithful to the drafters' intent
or the purposes of the standard to construe "on site in one location"
as completely separate from the definition of "process," since the
result would be to read part of the "process" definition out of the
standard altogether. In so concluding, the Secretary notes that the
overlap of "process" with "on site in one location" parallels a
similar overlap with "highly hazardous chemical," as the latter term
appears both in the "process" definition and in the language of the
application provision and its definition includes a reference back to
the application provision. Thus, the standard applies to a process, a
process is an activity involving a highly hazardous chemical, and a
highly hazardous chemical is, inter alia, a chemical that is specified
by the standard's application provision, 29 CFR 1910.119(a), (b). But,
despite this evident circularity, nobody has ever objected to that
overlap. Similarly, there is unavoidable overlap between "on site in
one location" and the portions of the process definition that refer to
interconnection and location.
The interpretation provided here is consistent with the ordinary
dictionary meaning of "on site in one location." The dictionary
defines "site" to mean, primarily, "the position or location of a
town, building, etc., esp. as to its environment." Webster's
Unabridged Dictionary 1128, 1788 (2d ed. 2001). It defines "location"
to mean, primarily, "a place or situation occupied." See also
American Heritage Dictionary (1976), 1210 (defining "site" as "the
place or plot of land where something was or is to be located" ), 765
(defining "location" to mean "a place where something is or might be
located; a site or situation"); Black's Law Dictionary (7th ed. 1999),
at 1392 ("site" means "a place or location; esp., a piece of
property set aside for a specific use"), at 951 ("location" means
"the specific place or position of a person or thing"). That "site"
and "location" are virtually synonyms provides further support for
the conclusion that avoiding redundancy was not uppermost in the minds
of the drafters. Read together, however, they reinforce the idea that
OSHA intended to give "highly hazardous chemical" and "process" a
rough geographical, as well as functional, limit.
This intent may be further discerned from consideration of relevant
regulatory history. CAAA Section 304 directed the Secretary, in
coordination with EPA, to promulgate a chemical process safety standard
designed to protect employees from hazards associated with accidental
releases of HHCs in the workplace. Although EPA's RMP Rule at 40 CFR
part 68 et seq. does not contain an "on site" (or "in one
location") limitation in its text, Congress's defining EPA coverage in
terms of a "stationary source" accomplishes the same limitation.
"Stationary source" is defined as any buildings, structures,
equipment, installations or substance emitting stationary activities
(i) which belong to the same industrial group, (ii) which are located
on one or more contiguous properties, (iii) which are under the control
of the same person (or persons under common control), and (iv) from
which an accidental release may occur, (42 U.S.C.A Sec.
7412(r)(2)(c)).\4\ Because Congress mandated OSHA and EPA coordination
in addressing the release of hazardous substances, the regulations of
the two agencies are to be construed together. In other words, the
boundaries of a covered facility under PSM will be similar to the
boundaries of a stationary source under RMP, and "on site in one
location" is given essentially the same meaning as the "which are
located on one or more contiguous properties" component of the term
"stationary source," while the rest of the definition mirrors OSHA's
definition of "process." Just as that term encompasses most of the
PSM "process" definition, this construction of "on site in one
location" also encompasses the inclusion of the "on-site movement"
of HHCs that was added to the definition of "process" in the final
rule. Although neither the NPRM nor the preamble to the final rule
provides any detailed explanation of this inclusion, it would be
consistent with the statutory aims of the CAAA to limit PSM coverage to
facilities included in the "stationary source" definition. To that end,
the Secretary also reads the limitation in "stationary source" to locations
"which are under the control of the same person (or persons under common
control)" as being implicit in the phrase "on site in one location" and,
indeed, in the definition of "process" (since the former phrase only relates
explicitly to flammable liquids and gases, and not to Appendix A toxic
substances).
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\4\ This term was directly adopted into RMP at 40 CFR 68.3.
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This construction also comports with the regulatory history on
aggregating the TQs of HHCs. As noted in the comments of stakeholders,
"on site in one location" could not be naturally read with the plural
term "processes" in proposed Sec. 1910.119(b)(1)(ii). A large
facility can have separate processes at different locations within its
boundaries, a point raised by Allied Signal in its comments (Ex. 3-17).
The American Paper Institute similarly commented that "a significant
concern for us is that the proposed rule is unclear as to how an
employer can determine when the rule would apply to a particular
facility handling chemicals at different locations of that facility."
(Tr. 1112).
Not only did the stakeholders point out that the NPRM's scope and
application section was inconsistent with the proposed definition of
"process," OSHA itself recognized the issue and took the unusual step
of clarifying its intent in an interim proposal document. By stating
that a chemical used in small quantities around the plant and not
concentrated in one process or in one area would be unlikely to cause a
catastrophic release, OSHA clearly sought to limit coverage of the PSM
standard to situations where a TQ of an HHC was concentrated in a
single, including an interconnected, process. Despite the inexact use
of the plural "processes" in the NPRM, it was never the agency's
intent to cover HHCs sufficiently dispersed in various locations on a
large site, and in more than one process, such that their release from
any one process would not cause the type of catastrophic harm that this
standard was aimed to prevent. The use of "on site in one location"
in the provision regarding flammables was intended to signal that
employers would not need to aggregate all sources of the chemical
facility-wide, or those outside the bounds of the employers' facility,
although the provision did not clearly describe the agency's intent
regarding which sources should be aggregated.
The hearing transcripts and written comments confirm that members
of the refinery industry, an industry with a particular interest in
OSHA's regulation of flammable liquids and gases, understood and
accepted OSHA's clarified position. For instance, Shell Oil Company
testified that it "strongly supports OSHA's position that owners
should not aggregate quantities of chemicals at separate locations
across a facility to determine if threshold quantities have been
reached", (Tr. 2591). BP testified that "if flammables are over
10,000 pounds in process, the rule applies to that process", (Tr.
3038). Amoco Corporation agreed that "OSHA clarified that the
threshold quantities of highly hazardous chemicals are determined on
process basis, rather than by aggregating quantities of like chemicals
for an entire facility", (Ex. 3-165). Union Carbide similarly stated
its understanding that "all of the thresholds be calculated on a `per
process' basis", (Ex. 3-109).
OSHA reiterated this position in the final rule, stating that it
"continues to believe that the potential hazard of a catastrophic
release exists when the highly hazardous chemical is concentrated in a
single process", (57 FR 6364). This was in agreement with those
stakeholders who argued that TQs should not be aggregated over an
entire facility, (e.g., Tr. 2591, 3192; Exs. 3-163, 3-164). OSHA's
final position was that PSM coverage could only be found if a TQ of an
HHC exists in a single process.
To the extent "on site in one location" did not adequately convey
that intent, the more precise revision of the definition of "process"
as a result of the record comments did so by clarifying that the
standard's scope was meant to apply to an area more confined than
multiple processes, but more expansive than a single process point,
where the process involves inter-connecting vessels or pipes, or
vessels in close proximity such that the release of an HHC in one could
trigger a chain reaction in the others. Accordingly, OSHA modified the
definition of "process" to include the concepts of
"interconnection" and "co-location" with addition of the language,
"any group of vessels which are interconnected or separate vessels
which are located such that a highly hazardous chemical could be
involved in a potential release shall be considered a single process."
29 CFR 1910.119(b). OSHA stated in the final rule that this definition,
when read in conjunction with the application section, establishes the
standard's intended coverage, (57 FR 6372). Therefore, a "single
process" containing a TQ of an HHC includes an "interconnected" or
closely co-located process.
D. The Regulatory Purpose
Construing "on site in one location" in tandem with the final,
expanded definition of "process" also serves OSHA's intended
purposes. First, the full definition of "process" makes clear that it
was not OSHA's intent that it would be required to prove that a release
of an HHC in one component of an interconnected process could affect a
release in other components of the same interconnected process in order
for the PSM standard to apply. Rather, the intent of OSHA and the
understanding of the stakeholders were to the contrary, as the
rulemaking record indicates. For example, AT&T recommended that OSHA
define threshold quantity as "the maximum amount in pounds in a
process (or connected processes)", (Ex. 3-126). Asarco, in its
comments, suggested that an interconnected process should be covered by
the PSM standard. (Ex. 3-125). API, the leading trade organization of
the refinery industry, included the concept of interconnection in its
Recommended Practice 750. As described supra, API 750 applied to
"facilities" that use, produce, process or store flammable or
explosive substances that are present in such quantity and condition
that a sudden, catastrophic release of more than five tons of gas or
vapor can occur over a matter of minutes, based on credible failure
scenarios and the properties of the materials involved, (API 750
1.3.1.1(a)).\5\ The term "facilities", as used in API 750, includes
buildings, containers, and equipment that are physically
interconnected, (see API 750 1.4.4).
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\5\ In the final rule, OSHA rejected API's TQ of 5 tons of
released flammable vapor as too complex, using instead the 10,000
pounds TQ. 57 FR at 6366-67.
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The presence of the word "or" between interconnected and co-
located vessels in the final rule demonstrates that two potential
avenues exist to find a covered process when several aspects may be
involved in the overall process. The plain language of the definition
establishes two distinct burdens of proof when considering the
applicability of PSM to an interconnected or a co-located process. With
respect to a co-located process, OSHA would be required to demonstrate
as part of its prima facie case that unconnected but co-located
processes are situated in a manner that a release from one process
could contribute to the release of the other. In contrast, the
definition of "process" contains no such requirement for an
interconnected process. In other words, OSHA's intent is that the
phrase "which are located such that a highly hazardous chemical could be
involved in a potential release" modifies only the immediately-preceding
"separate vessels," making the entire phrase parallel to the free-standing
phrase "any group of vessels which are interconnected." Thus, there is no
additional requirement on OSHA to show the potentiality of a release with
respect to interconnected (as opposed to separate) vessels. Rather, the PSM
standard presumes that all aspects of a physically connected process
can be expected to participate in a catastrophic release.
Second, it is clear that, in revising the "process" definition to
encompass the "on-site movement" of HHCs and the twin concepts of
inter-connectedness and co-location, OSHA intended that definition to
bear most of the weight of defining the scope of the standard. As
originally drafted, the "process" definition not only did not have
these clarifications, but "onsite in one location" appeared only in
the subsection on flammable liquids and gases, and not in the
subsection on Appendix A toxic substances. There is no obvious
explanation why this was so. As noted, the phrase was intended to
signal that it was not necessary to aggregate all sources of a chemical
within, or beyond, the employer's facility. The final standard
clarified and more precisely stated this intent and made clear that the
same principles applied to both listed and flammable chemicals.
The phrase in the final standard continues to carry its original
NPRM meaning of setting a geographic boundary ("on site") and, within
that boundary, a site-specific parameter ("in one location"). But
after the definition of "process" was changed in the final rule to
include explicit language clarifying that a "single process" includes
"any group of vessels which are interconnected or separate vessels
which are located such that a highly hazardous chemical could be
involved in a potential release," the limitation placed on application
of the standard to flammable liquids and gases denoted by the related
phrase "on site in one location" no longer carries the independent
weight it had before OSHA clarified the intended meaning of
"process." As previously stated, however, it continues to serve a
separate purpose by operating to exclude coverage where the HHC
threshold would be met only if all amounts in interconnected or co-
located vessels were aggregated but some of the amounts needed to meet
the threshold quantity are outside of the perimeter of the employer's
facility.
E. The Response to the Motiva Decision
In the Motiva decision, the Review Commission appropriately left to
the Secretary the task of interpreting "on site in one location" as
it appears in the PSM standard, rather than doing so as an initial
matter on its own. This Notice accomplishes that function. The
interpretation set forth here is supported by the language, history and
purposes of the standard and is consistent with the position adopted by
EPA. In the absence of an agency interpretation, the Review Commission
had focused on another guide to regulatory intent, the canon of
construction that says that all the words of a statute (or regulation)
should be assumed to have their own meaning, and suggested that "on
site in one location" therefore has a meaning wholly apart from
process. Regardless of the strength of this canon, the Secretary has
satisfied it here by interpreting "on site in one location" to limit
coverage to vessels within contiguous areas controlled by an employer
or group of affiliated employers.
More fundamentally, the Secretary agrees that canons of
construction can be useful guides to regulatory intent. They are guides
only, however, and should not be mechanically applied in the face of
stronger indicia of intent. The flip side of the canon referred to
above is the rule that the words of a standard (or regulation) should
not be given meaning at the expense of rendering other words
meaningless. Accordingly, the courts have put aside the general rule
against redundancy in statutes if applying the rule would be counter to
legislative intent. See Gutierrez v. Ada, 528 U.S. 250, 258 (2000)
("rule against redundancy does not necessarily have the strength to
turn a tide of good cause to come out the other way"); Morton v.
United Parcel Service, Inc., 272 F.3d 1249, 1258 (9th Cir. 2001) (rule
of redundancy not followed when intent of statute clear); Mayer v.
Spanel Intern. LTD., 51 F.3d 670, 674 (7th Cir. 1995) (every enacted
word need not carry independent force absent strong evidence that at
the time of enactment the words were understood as equivalents). In
this case, the general statutory canon against redundancy cannot be
given controlling weight given the clear intent of OSHA, in the final
rule, and the stakeholders, through their comments, during the
regulatory process. To do otherwise, in the Secretary's judgment, would
render meaningless the most important revision affecting coverage that
came out of the rulemaking process, namely the explicit inclusion of
the twin concepts of interconnection and co-location in the definition
of "process" and the clear intent that those concepts would determine
coverage under the standard.
Moreover, it is simply linguistically inescapable that there is
overlap and redundancy among the terms of the standard. Motiva involved
the interplay between "on site in one location" and the
"interconnected" prong of the definition of "process," but the
other prong of that definition refers to vessels that are so
"located" to create a risk of catastrophic release. Similarly, the
appearance of "highly hazardous chemical" in the definition of
"process" and in the application provision, and the reference back to
the application section in the HHC definition, creates an unavoidable
redundancy. So too here, the Secretary cannot reasonably interpret "on
site in one location" in a way that has no overlap with "process."
Instead, consistent with how courts generally apply the canons of
construction, she has settled on an interpretation of the term "on
site in one location" that conforms as much as possible to the
ordinary meaning of the words and to the standard's overall language,
history, and purposes.
Signature
This document was prepared under the direction of Edwin G. Foulke,
Jr., Assistant Secretary of Labor for Occupational Safety and Health,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210.
Signed at Washington, DC, this 1st day of June, 2007.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E7-10918 Filed 6-6-07; 8:45 am]
BILLING CODE 4510-26-P
