July 29, 2003

Mr. Robert Johnson
5536 W. Rita Dr.
West Allis, WI 53219-2253

Dear Mr. Johnson:

Thank you for your May 9 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. You had specific questions regarding regulations related to liquid asphalt and to barge slips. Your paraphrased inquiries and our responses follow.

Question: Is asphalt from 85 to 150 penetration an unstable liquid because when its temperature gets over 212ºF and it is mixed with water it begins to foam?

Response: Please be aware that OSHA does not have a specific standard covering "unstable" liquids. Also, although we do regulate most flammable and combustible liquids, liquid asphalt is a Class IIIB combustible liquid (it has a flashpoint over 200ºF) and therefore is not covered under 29 CFR 1910.106, regardless of its reaction with water at an elevated temperature.

Since liquid asphalt can be considered hazardous, in a specific situation OSHA could issue a citation based on the General Duty Clause [Section 5(a)(1)] of the Occupational Safety and Health Act of 1970 (OSH Act). According to the General Duty Clause, each employer must furnish to each of his employees "employment and place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm." When evaluating the hazards of liquid asphalt, OSHA would consult such sources as the 2000 revision of the National Fire Protection Association (NFPA) 30, Flammable and Combustible Liquids Code, which addresses the hazards of Class IIIB liquids.

Question: How far does a dike have to be from a barge slip?

Response: OSHA does not have any standards related to the placement of marine dikes, berms, or pilings relative to waterways; other Federal agencies have jurisdiction over this matter (e.g., Army Corps of Engineers, Environmental Protection Agency, etc.). In addition to various Federal agencies, state or local authorities could possibly have authority, depending on the particular circumstances.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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 http://www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs