FLAMMABLE LIQUIDS SECTION OF THE OCCUPATIONAL SAFETY

AND HEALTH REGULATIONS

The Occupational Safety and Health Act of 1970 was enacted with the declared Congressional purpose and policy "to assure so far as possible every working man and woman. safe and healthful working conditions, and to preserve our human resources."

Section 1910.1 of the Rules and Regulations reads in part: "The legislative purpose of this provision is to establish as rapidly as possible and without regard to the rule-making provisions of the Administrative Procedure Act, standards with which industries are generally familiar, and on whose adoption interested and affected persons have already had an opportunity to express their views. Such standards are either (1) National consensus standards on whose adoption affected persons have reached substantial agreement, or (2) Federal standards already established by Federal statutes or regulations."

Paragraph (g) in the Rules and Regulations defines "National consensus standard" as follows: "National consensus standard means any standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary of Labor or by the Assistant Secretary of Labor that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption."

In spite of the intent of Congress the office of Safety and Health did not adopt the NFPA standards to cover the storage and handling of flammable liquids. It is true that NFPA was used as a guideline and most of the wording in the OSHA Regulations are identical with NFPA; however, there are several variances and two major omissions which seriously alters the effect of the standards.

The OSHA regulations completely ignored and eliminated the NFPA sections on "Scope and Retroactivity."

Without the NFPA section on "Scope" the OSHA regulations can be interpreted to apply to many situations for which NFPA was never intended.

It is inconceivable that a committee, no matter how well staffed, can write a set of regulations which would properly apply to every installation in the United States. This is the reason NFPA wrote into its "Scope" section the following:

"Paragraph 1030. In particular installations the provisions of this Code may be altered at the discretion of the authority having jurisdiction after consideration of the special features such as topographical conditions, barricades, walls, adequacy of building exits, nature of occupancies, proximity to buildings or adjoining property and character of construction of such buildings, capacity and construction of such proposed tanks and character of liquids to be stored, nature of process, degree of private fire protection to be provided and the adequacy of facilities of the fire department to cope with flammable or combustible liquid fires."

The deletion of this section by OSHA is comparable to setting up one set of medical treatments and applying it to every patient who enters a hospital regardless of the patient's illness or physical condition.

Probably the most serious omission in the OSHA regulations pertains to Section 1040 of NFPA. This section was completely deleted in the OSHA regulations; it provides as follows:

"Paragraph 1040. Existing plants, stores, equipments, buildings, structures and installations for the storage, handling, or use of flammable or combustible liquids which are not in strict compliance with the terms of this Code may be continued in use provided these do not constitute a distinct hazard to life or adjoining property. When the authority having jurisdiction deems that the continued use will constitute a distinct hazard to life or adjoining property, he shall notify the owner or operator and specify reason in writing."

Without this provision OSHA is not a consensus standard. In fact without that provision NFPA would not have been a consensus standard as written. Section 1910.5 (d) OSHA clearly states:

"In the event a standard protects on its face a class of persons larger than employees, the standard shall be applicable under this part only to employees and their employment and places of employment."

Many of the sections of NFPA were written not for protection of the employees, but for the purpose of protecting property and to aid the fire department in the containment and control of a possible fire. It is in these sections where a grandfather clause is most important.

Specific examples:

Section 1910.106 (b) OSHA concerning tanks lists many different specifications for the construction of tanks. This includes the thickness and type of metal to be used. All of these specifications have undergone changes over the years. Tanks which were built to code specifications 20 years ago may not meet the new specifications of NFPA or OSHA simply because the old specifications called for 3/16-inch steel, while the new specifications call for 4-inch steel. These tanks are serving their purpose well and can not be classed as a "distinct hazard;" therefore, NFPA says they may be continued in use. Without the grandfather clause the OSHA regulation will require that thousands of tanks be replaced with no added protection to the employee.

Specific examples:

Contains various tables concerning the spacing between tanks and property lines and buildings. This section is specifically for the protection of property and to aid the fire department in containing a possible fire. It has nothing to do with the protection of employees. In fact, it is doubtful whether it would be possible to find one single incident over the past 20 years where an employee had been injured because of the spacing between tanks or between tanks and property lines, or even tanks and loading racks. Yet without the grandfather clause one company alone has estimated that it will cost them $28-million to bring their tanks into compliance with these spacing regulations. All of this with no additional protection and reconstruction of tanks to comply with this useless provision would probably cause injuries from falls, fires and explosions, because it would require "hot work" on tanks containing flammable liquids. The NFPA section on "Diking" reads in part as follows:

"2171. 'Drainage, and Diked Areas:' The area surrounding a tank or a group of tanks shall be provided with drainage as in Paragraph 2172, or shall be diked as provided in Paragraph 2173, to prevent accidental discharge of liquid from endangering adjoining property or reaching waterways except that in particular installations these provisions may be waived or altered at the discretion of the authority having jurisdiction when the tanks under consideration do not constitute a hazard to adjoining property."

Here again, the provision is clearly stated as being for the protection of "adjoining property or waterways."

No effort will be made in this memorandum to explain all of the ramifications but there are many conditions where dikes become a hindrance to the fire fighters and should not be employed. For example, one way of protecting storage tanks and other exposed property is to sweep spilled product away by means of water streams. When dikes are involved this is impossible. Each case must be separately evaluated. This is the reason that NFPA specifically provided in this section for "discretion of the authority having jurisdiction." OSHA deleted this discretion, as it has done in many other sections.

The section on "Foundation" under "Aboveground Tanks" is again written to aid the fire department in case of fire. Whether or not the steel in a foundation has a "two-hour fire protection" has no effects on the employees' health or safety. In the midwest there are literally thousands of bulk plants with unprotected steel foundations. These tanks have been in use for 30-to-40 years without endangering the employees and should be permitted to continue in operation.

It is believed that OSHA deleted the "Scope and Application" section (commonly called the grandfather clause) from the National Fire Protection Association Standard No. 30, because it was felt that the words "distinctly hazardous" might require a judgment decision to be made on each location. If this was the reason for deleting this very important section then it can be easily corrected by reinstating it along with two minor amendments and by adding some brief guidelines to the Compliance Operations Manual delineating what is, and what is not, to be "distinctly hazardous."

(See attached proposed amendments) Incidentally, the law defines an employer as "a person engaged in business affecting commerce." Some attorneys believe that this is broad enough to include farmers, if so, then without these amendments there will be a super colossal compliance, and administrative problems, because all farmers now use and store flammable liquids.

It might be well to point out that in the North Atlantic states most storage of flammable liquids is in the terminal-type tanks, sometimes having capacities of millions of gallons. This type of storage should be differentiated from the many thousands of small bulk plants throughout mid-America and the southern portion of the United States which will not be in compliance with the OSHA

requirements unless this grandfather clause is reinstated. In fact, a large portion of these plants will be forced out of business because they simply cannot comply with spacing requirements, etc.

PROPOSED AMENDMENT TO OSHA REGULATIONS TO PROVIDE A "GRANDFATHER CLAUSE"

"The regulations adopted in this part and the standard referenced as regulations in this subpart are not intended to preclude the continued use of facilities and equipment installed prior to the effective dates herein specified provided such facilities and equipment do not constitute a distinct hazard to employees. While variations in design and construction features such as relative location of existing equipment, structures and components do not normally constitute distinct hazards to employees, some features may. Specific evaluation of such a facility may be required to determine whether or not a "distinct hazard" exists. Good operational practices, proper maintenance, good housekeeping practices and items specifically referenced in these regulations as applying regardless of when a facility was built will normally be considered essential to avoiding "distinct hazards" to employees.

"At any plant, station or establishment existing and devoted to flammable or combustible liquid use as of the effective date of these standards, existing nonconformity and continuance of which is allowed shall not prevent the installation of additional or replacement facilities which in and of themselves are in conformity with these standards."

PROPOSED AMENDMENT TO OSHA COMPLIANCE OPERATIONS MANUAL

Section 1910.5 of the Standards containing two paragraphs which provide that certain physical equipment may be continued in use even though it may not be in strict compliance with the Standards if it was constructed and in use prior to the effective date of these Standards and if its continued use will not constitute a "Distinct Hazard."

A complete list of those items which might be classed as "Distinctly Hazardous" or "Not Distinctly Hazardous" would be impossible to make, but the following should be used as an incompleted guideline.

With respect to the locations or arrangements of buildings, tanks, platforms or docks or to spacing or clearances between these installations or between these installations and adjoining property lines shall not be deemed to be distinctly hazardous and may be allowed to continue.

With respect to vents or pressure relief devices on tanks, control valves on tanks or in piping systems, ventilation or sources of ignition shall be deemed distinctly hazardous and shall be corrected or eliminated provided, however, that vents or pressure relief devices on tanks prior to the effective date of this code and meeting the size requirement of NFPA Pamphlet No. 30 which was in effect at the time of installation may be allowed to continue.

As to the diking of tanks and the fire protection of steel supports, consideration should be given to the fact that these two requirements are primarily for the purpose of protecting property and bodies of water and to aid the Fire Department in containing a possible fire. Therefore, if other good operational and housekeeping operations are being followed, the facilities may continue to operate without diking or the fire protection of steel supports Provided that at any time when there is a major maintenance program, the steel supports will then be made to comply.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION

CIVIL ACTION FILE NO. 17058

v.

MCNEILL STOKES and LEWIS C. BARBEE, PLAINTIFFS, v. JAMES D. HODGSON, Secretary of Labor, United States Department of Labor, DEFENDANT

COMPLAINT

The Complaint of MCNEILL STOKES and LEWIS C. BARBEE, hereinafter referred to as "Plaintiffs," respectfully shows the Court the following, to-wit:

1.

This is an action arising under the laws of the United States, 5 U.S.C.A. § 552 (3) (a) (3) (1967), an Act commonly known as the "Freedom of Information Act". This action is to enjoin the Secretary of Labor from withholding records of the Department of Labor improperly withheld from the Plaintiffs. Jurisdiction is conferred upon this Court by 5 U.S.C.A. § 552 (3) (a) (3) (1967).

2.

The Plaintiffs herein are MCNEILL STOKES, who maintains his principal place of business and residence within the Northern District of Georgia, and LEWIS C. BARBEE, who joins in this Complaint as a party Plaintiff pursuant to Rule 20 of the Federal Rules of Civil Procedure.

3.

The Defendant herein is JAMES D. HODGSON, the duly appointed Secretary of Labor of the United States Department of Labor.

4.

On or about May 10, 1972, the Plaintiff, LEWIS C. BARBEE, requested in writing a copy of the "Training Course for Compliance Safety and Health Officers", which is used to train inspectors of the Occupational Safety and Health Administration, and tendered the cost of copying this document. A copy of said request is attached hereto, marked Exhibit "A", and incorporated by reference herein.

5.

On or about June 4, 1972, the United States Department of Labor, Occupational Safety and Health Administration, declined to furnish copies of said Training Course, a copy of said refusal is attached hereto, marked Exhibit "B", and incorporated herein by reference.

6.

On or about June 7, 1972, Plaintiff, McNEILL STOKES, on his behalf and on behalf of Plaintiff, LEWIS C. BARBEE, made a request and demand under the provisions of the Freedom of Information Act, 5 U.S.C.A. § 552 (1967), that a copy of said Training Course be made available for inspection and copying. This written request and demand was served by Certified Mail upon Dr. Morris D. Wallach, Chief Officer of Training Operations, who has custody of the Training Manual. A copy of said request for said Training Course is attached hereto marked Exhibit "C" and incorporated by reference herein.

7.

On or about June 16, 1972, the United States Department of Labor summarily denied Plaintiffs request, a copy of which is attached hereto marked Exhibit "D" and incorporated by reference herein.

8.

The Training Course is an administrative manual and instructions to the Occupational Safety and Health Administration staff which affects members of the public. The Training Course is used to train all the inspectors of the Occupational Safety and Health Administration, who are empowered to inspect the workplaces of all employers affecting commerce.

The Plaintiff, LEWIS C. BARBEE, is a Registered Certified Professional Safety Engineer and needs to inspect a copy of the Training Course in order to conduct safety inspections and education programs for employers affecting commerce so that said employers may be advised as to how they may comply with the requirements of the Occupational Safety and Health Act of 1970, and its inspection procedures.

10.

The Plaintiff, MCNEIL STOKES, is an Attorney-at-Law and has need to inspect the Training Course so that he may advise his clients on the requirements of the Occupational Safety and Health Act of 1970, and its inspection procedures.

11.

Plaintiffs, MCNEILL STOKES and LEWIS C. BARBEE, requested copies of the Training Course for use in preparation of their testimonies before The United States House of Representatives Subcommittee on Environmental Problems Affecting Small Business at Hearings on "Small Business And The Occupational Safety And Health Act of 1970", held June 20-22, 1972. The Defendant refused to furnish a copy of said Training Course in advance of said Congressional Hearings so that the Training Course might be reviewed by the Plaintiffs for use in preparing their testimonies. Additional hearings on proposed legislative amendments and hearings on the enforcement procedures of the Occupational Safety and Health Act by the Department of Labor are to be held in Congress and Plaintiffs need copies of the Training Course in order to prepare their testimony for said legislative hearings.

12.

Plaintiffs will be substantially and irreparably injured unless the Defendant is temporarily and permanently enjoined from withholding the Training Course from Plaintiffs' inspection and copying.

13.

On or about July 26, 1972, Plaintiffs appealed to the Solicitor of Labor to be allowed to inspect and copy the Training Course. A copy of said appeal is attached hereto marked Exhibit "E" and incorporated by reference herein. On or about August 21, 1972, the Solicitor of Labor denied and refused to allow Plaintiffs' appeal and refused to allow Plaintiffs to inspect said Training Course. A copy of said denial of Plaintiffs' appeal to the Solicitor of Labor is attached hereto marked Exhibit "F"" and incorporated by reference herein.

Wherefore, Plaintiffs demand:

(a) That the Defendants be temporarily and permanently enjoined from withholding from the Plaintiffs the "Training Course for Compliance Safety and Health Officers";

(b) That the Defendants be ordered to produce said Training Course for inspection and copying by the Plaintiffs;

(c) That the Court issue an order requiring the Defendant to show cause why said injunction should not be granted and that this hearing take precedence on the docket over all other cases, except as to causes that the Court considers of greater importance, and that said hearing be at the earliest practical date and expedited in every way as provided in 5 U.S.C.A. § 552 (a) (3) (1967); (d) That the costs of this action be cast upon the Defendants and; (e) That the Plaintiffs have such other and further relief as may be deemed necessary and proper.

Respectfully submitted,

STOKES, BOYD & SHAPIRO, By: MCNEILL STOKES.

U.S. DEPARTMENT OF LABOR,

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,

Washington, D.C., June 5, 1972.

Mr. LEWIS C. BARBEE,

Vice President,

Houston-General Insurance Group,
Fort Worth, Tex.

DEAR MR. BARBEE: Reference is made to your inquiry dated May 10, 1972. requesting copies of the lesson plans in use at the OSHA Training Institute for the Compliance Safety and Health Officer course.

We at the OSHA Office of Training and Education are quite pleased with the devoted efforts of our instructor staff at the Institute. Naturally, we were elated to learn of your complimentary remarks concerning the quality of the lesson plans that they have developed. As much as we would like to comply