OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

November 9, 1993

Mr. Marvin J. Ford II
Industrial Enterprises, Inc.
P.O. Box 5593
Pocatello, Idaho 83202

Dear Mr. Ford:

This is in response to your August 4 letter requesting clarification of the applicability of the Occupational Safety and Health Administration (OSHA) requirements for spill containment of flammable or combustible liquids storage outside buildings when a curb or earth dike is used. I apologize for the delay in responding to your inquiry.

With regard to whether the general industry standard or the construction standard applies to your storage facility, please be advised that application of these two standards depends on the nature of the work involved. If the nature of the work utilizing the facility meets the definition of construction work at 29 CFR 1910.12 (e.g., the storage tanks are temporary in nature and will be removed when the construction activity is completed), the requirements of Part 1926 apply and a 12-inch high curb would be required. However, if the storage is not used in support of construction activities, then the 1910 requirements apply. Please bear in mind that both the general industry and construction standards are minimum standards and if a higher curb is necessary to provide protection from spilled flammable liquids, then such a curb should be provided.

If you have any further questions, please do not hesitate to contact me or Mr. Dale Cavanaugh of my staff at (202) 219-8124.

Sincerely,



Roy F. Gurnham, P.E., Esq.
Director
Office of Construction and Maritime
Compliance Assistance




August 4, 1993

Roy F. Gurnham, Esq. P.E.
Director
Office of Construction and Maritime
Compliance Assistance
Occupational Safety and Health Administration
200 Constitution Avenue N.W.
Washington, D. C. 20210

RE: Earth dykes or curbs use for spill containment of flammable and combustible liquids, Request for Interpretation

Dear Sir:

When used for spill containment of flammable or combustible liquids, the earth dyke or curb criteria stated in 29 CFR 1926 and 1910 seem to differ.

29 CFR 1910.106(d)(6)(iii) states in part that "The storage area shall be graded in a manner to divert possible spills away from buildings or other exposures or shall be surrounded by a curb of at least 6 inches high."

29 CFR 1926.152(c)(3) states in part that "The storage area shall be graded in a manner to divert possible spills away from buildings or other exposures, or shall be surrounded by a curb or earth dyke at least 12 inches high."

We would appreciate your interpretation of which criteria applies (29 CFR 1910.106(d)(6)(iii) or 29 CFR 1926.152(c)(3)) for outside storage tank for flammable or combustible liquid tanks between 250 to 1200 gallons when a curb or earth dyke is used.

Your reply is urgently requested to preclude unnecessary delays in construction of same. Thank you for your assistance.

Sincerely,

INDUSTRIAL ENTERPRISES, INC.



MARVIN J. FORD II