Explosives

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 § 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://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 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

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 § 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 § 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 § 1910.109(k)(2) which states that the manufacture of explosives must meet the requirements contained in § 1910.119 and by adding § 1910.109(k)(3) which states that the manufacture of pyrotechnics must meet the requirements in § 1910.119. 57 FR 6356.

The most recent revisions made to § 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 (§ 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 (§ 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 § 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 § 1910.119 and incorporate revised PSM requirements for the manufacture of explosives into § 1910.109;

• Replace references to outdated DOT explosives classifications with the current DOT classification system;

• Eliminate the provisions in § 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 § 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

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 § 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 (§ 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

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

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 magazines

29 CFR 1910.109(c)(2), (3) and (4).

27 CFR 555.212 Smoking and open flames

29 CFR 1910.109(c)(5)(vii).

27 CFR 555.213 Quantity and storage restrictions

29 CFR 1910.109(c)(1)(ii).

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 for storage of explosive materials

29 CFR 1910.109(c)(1) Table 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 § 1910.109. Therefore, OSHA has concluded that its storage requirements for explosives in § 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 § 1910.109 that deal with the storage of explosives.

OSHA is proposing to retain the provisions in § 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 § 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 § 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 § 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 § 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, § 2936, Nov. 16, 1990, 104 Stat. 3244) and added the following reverse preemption language in § 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

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 § 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 § 1805 covered the registration, filing, and permit requirements for transporters of hazardous materials.

The reverse preemption language in § 1805(b)(3) of the Hazmat Act nullified any effect of the OSH Act's 4(b)(1) preemption provision over matters covered by § 1805 of the Hazmat Act. Because § 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, § 5101

et seq.

(Pub. L. 103-272, July 5, 1994, 108 Stat. 745). Although the reverse preemption language was altered and recodified at § 5107(f)(2), its meaning and coverage remained the same. Section 5107(f)(2) states:

§ 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 § 5109 covers safety permits for motor carriers transporting hazardous materials.

Similar to the reverse preemption language in the 1990 amendments to the Hazmat Act, § 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 §§ 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 §§ 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 § 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 § 1805(b)(3) in the

Yellow Freight

case. DOT stated that the reverse preemption language “found in § 1805(b)(3) * * * referred to the entirety of § 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 § 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 § 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

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 § 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 § 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 § 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 § 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 § 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 § 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 § 1910.119 and another provision requiring that the manufacture of pyrotechnics comply with § 1910.119. Proposed paragraph (a)(2) requiring that the manufacture of explosives comply with § 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 § 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 § 1910.119, OSHA in proposed paragraph (a)(2) is specifically excluding blasting agents from the requirements of § 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

explosive chemicals (see § 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 § 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 § 1910.119. Although the manufacture of blasting agents is not subject to the PSM standard, both the existing standard at § 1910.109(g) and (h) and the proposed standard at § 1910.109(c) and (g) have requirements covering the safe manufacture of blasting agents.

Proposed paragraph (a)(3)(i) clarifies that § 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 § 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 § 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 § 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

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 (§ 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 § 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

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 § 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 § 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 §§ 1910.109(k)(2) and (3) and proposed standard §§ 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

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 § 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

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 § 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 § 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

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 § 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 § 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

(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 § 1910.252(a) and proposed paragraph (c)(3)(iii) of this section are implemented prior to beginning hot work operations. The requirements in § 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 § 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, § 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, § 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, § 1910.1200. This simply clarifies that packages of explosives are required to be labeled in accordance with § 1901.1200. In addition, the proposed requirement specifies that, where labeling of explosives is required under § 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 (§ 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 § 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 § 1910.1200. Labels required for compliance with § 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

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 § 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 § 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 § 1910.1201(d), for non-bulk packages containing explosives that will not be reshipped, the requirements of § 1910.1201 are met if a label or other acceptable marking is affixed in accordance with the Hazard Communication standard (see § 1910.1201(d)). Under § 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 § 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 § 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 § 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

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

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 consideration because the contents of the structures are sensitive to arc or spark ignition. The note goes on to direct the reader to Appendix K of NFPA 780-2004 for guidance on protection of such structures. Based on this, it appears that NFPA made a determination to add guidance for lightning protection for explosives facilities after 1968 and those guidelines were placed in an Appendix K to NFPA 780-2004. It also appears that even though the scope of NFPA 780-2004 excludes explosives facilities, the standard does contain requirements for lightning protection at explosives facilities in its Appendix K.

Therefore, proposed paragraph (d)(2)(ii)(N) specifically indicates that Appendix K of NFPA 780-2004 or other equally protective criteria can be used for guidance on installing a lightning protection system. OSHA believes this will clarify the applicability of NFPA 780-2004. However, the systems identified in NFPA 780-2004 Appendix K are not the only systems that can be used. They are identified for purposes of providing guidance to employers on possible systems that meet the requirements of the proposed standard and employers are free to employ any protective systems that would afford equivalent protection.

OSHA did not change the requirement that lightning protection be provided only in areas where lightning storms are prevalent and did not change the applicability to storage of ammonium nitrate. To make the proposed lightning protection requirement easier to understand and comply with, OSHA considered revising the language to eliminate the restriction to “areas where lightning storms are prevalent.” In addition, OSHA considered expanding the requirement's application to all facilities containing explosives. This would mean that any existing facility without a lightning protection system would need to be retrofitted with a system.

These changes have not been included in this proposed rule because OSHA believes that additional information is needed in order to fully evaluate the potential impact of such changes on affected facilities. The Agency is seeking specific comments as described below.

Issue #9:

Should OSHA require lightning protection systems for any facility that contains ammonium nitrate or explosives? What would these systems cost? What would it cost to install lightning protection systems at facilities that currently do not have them? Is the meaning of the words “in areas where lightning storms are prevalent” in proposed paragraph (d)(2)(ii)(N) clear? If not, is there any language OSHA should consider using to clarify the meaning of the proposed provision? Should OSHA require lightning protection systems in all areas since lightning storms can occur anywhere? Is it appropriate for OSHA to refer in proposed paragraph (d)(2)(ii)(N) to NFPA 780-2004 Appendix K for recommended methods of compliance for buildings storing ammonium nitrate?

Proposed paragraph (d)(3) addresses the storage of ammonium nitrate in bags and containers and is similar to existing paragraph (i)(3). In proposed paragraph (d)(3), OSHA uses the term “containers” to mean any container used for the storage of ammonium nitrate (including drums). Although existing paragraph (i)(3) includes the term “drums,” the term is not used in any of the requirements that follow existing paragraph (i)(3). OSHA believes this could lead to confusion and has proposed, for clarity purposes, that drums be treated the same as other containers used to store ammonium nitrate. OSHA believes this is the intent of both existing paragraph (i)(3) and Chapter 5 of the 2002 edition of NFPA 490.

Paragraph (d)(3)(i)(A) would require the employer to ensure that bags and containers used for ammonium nitrate storage are constructed in accordance with DOT regulations (49 CFR chapter I). Paragraph (d)(3)(i)(B) would require the employer to ensure that bags and containers used for ammonium nitrate storage are labeled in accordance with DOT regulations (49 CFR chapter I) or § 1910.1200 regulations, as applicable. The proposed requirements in (d)(3)(i) (A) and (B) are similar to and replace existing paragraph (i)(3)(i)(a) except that they have been re-written in clearer language using the terms and references consistent with those used throughout this proposed rule. They are also consistent with paragraph 5.1 of the 2002 edition of NFPA 490 (Ex. 2-6). In addition, for ease of compliance, the proposed requirements were revised into two separate subparagraphs, one covering the construction of the bags and containers used for ammonium nitrate storage and the other for the labeling of the bags and containers. This clarifies that the referenced DOT regulations include both construction and labeling criteria and, to be consistent with proposed paragraph (c)(5)(i), the labeling requirements in proposed paragraph (d)(3)(i)(B) include compliance with § 1910.1200, as applicable.

Proposed paragraphs (d)(3)(i)(A) and (d)(3)(i)(B) are not intended to cover bags or containers used for the temporary holding of ammonium nitrate during the manufacture of explosives. If a bag or container is used to temporarily hold ammonium nitrate during the manufacturing of explosives, it is not considered storage. Since the temporary holding of material during the manufacturing process is not considered storage, OSHA is proposing not to retain existing paragraph (i)(3)(i)(b) which excludes containers used in the actual manufacturing of explosives from compliance with existing paragraph (i)(3)(i)(a).

Paragraph (d)(3)(ii) would require the employer to ensure that bags and containers of ammonium nitrate are not placed into storage when the temperature of the ammonium nitrate exceeds 130 °F. This proposed requirement is essentially the same as and replaces existing paragraph (i)(3)(ii)(a) except that it has been rewritten in clearer language using terms consistent with the proposed rule. In addition, unlike the existing requirement that only applies to containers, the proposed requirement applies to both bags and containers since they are treated the same in the proposed standard. Proposed paragraph (d)(3)(ii) is also consistent with paragraph 5.2.1 of the 2002 edition of NFPA 490 (Ex. 2-6).

Paragraph (d)(3)(iii) would require the employer to ensure that bags and containers of ammonium nitrate are not stored within 30 inches of storage building walls and partitions. This proposed requirement is the same as and replaces existing paragraph (i)(3)(ii)(b) except that it also includes containers to be consistent with other requirements in proposed paragraph (d)(3). Proposed paragraph (d)(3)(iii) is also slightly different than paragraph 5.2.2 of the 2002 edition of NFPA 490 (Ex. 2-6) which only addresses bags. However, as stated earlier, OSHA is treating bags and containers in the same way in this proposed standard.

Paragraph (d)(3)(iv) would require the employer to ensure that stacks of bags or containers of ammonium nitrate do not exceed 20 feet in height or 20 feet in width. Proposed paragraph (d)(3)(v) would require the employer to ensure that stacks of bags or containers of ammonium nitrate are limited to 50 feet in length unless located in a building of non-combustible construction or protected by an automatic sprinkler system. Proposed paragraph (d)(3)(vi) would require the employer to ensure that bags or containers of ammonium nitrate are not stacked within 36 inches of the roof or overhead supporting structure of the storage building. These three requirements are the same as and replace those in existing paragraph (i)(3)(ii)(c) except that the proposed requirements use the terms “stacks of bags or containers” whereas existing paragraph (i)(3)(ii)(c) uses the term “piles.” Proposed paragraphs (d)(3)(iv), (v), and (vi) are also consistent with paragraphs 5.2.3 and 5.2.4 of the 2002 edition of NFPA 490 (Ex. 2-6).

Paragraph (d)(3)(vii) would require the employer to ensure that aisles at least 3-feet wide are provided to separate stacks of bags or containers of ammonium nitrate and paragraph (d)(3)(viii) would require the employer to ensure that at least one main aisle separating stacks of bags or containers of ammonium nitrate in the storage area is at least 4-feet wide. The purpose of this wider aisle requirement is to facilitate egress in case of an emergency. These proposed requirements are the same as and replace the requirements in existing paragraph (i)(3)(ii)(d) except that they have been rewritten in clearer language. In addition, the term “piles” in existing paragraph (i)(3)(ii)(d) has been replaced in proposed paragraph (d)(3)(vii) and (viii) with the phrase “stacks of bags or containers.” The proposed requirements are also consistent with those in paragraph 5.2.5 of the 2002 edition of NFPA 490 (Ex. 2-6).

Proposed paragraph (d)(4) addresses storage of bulk ammonium nitrate. Paragraph (d)(4)(i) would require the employer to ensure that bulk storage bins used to store ammonium nitrate are clean and free of materials which may contaminate the ammonium nitrate. The proposed requirement is essentially the same as and replaces existing paragraph (i)(4)(ii)(a) except that the proposed language uses the term “bulk storage bins” instead of just “bins.” OSHA believes the term “bulk storage bins” better describes the bins that are regulated. Proposed paragraph (d)(4)(i) is also consistent with paragraph 6.2.1 of the 2002 edition of NFPA 490 (Ex. 2-6).

Paragraph (d)(4)(ii) would require the employer to ensure that, to avoid contamination of the ammonium nitrate, galvanized iron, copper, lead, and zinc are not used in the construction of ammonium nitrate bulk storage bins unless suitably protected against the corrosive and reactive properties of the ammonium nitrate. Proposed paragraph (d)(4)(iii) would require the employer to ensure that aluminum and wooden bulk storage bins used to store ammonium nitrate are protected against ammonium nitrate impregnation. Proposed paragraph (d)(4)(iv) would require the employer to ensure that the partitions dividing stored ammonium nitrate from other products are constructed to prevent contamination of the ammonium nitrate with these other products. All three of these proposed requirements are essentially the same as and replace the requirements in existing paragraph (i)(4)(ii)(b). They are also consistent with paragraphs 6.2.2 and 6.2.3 of the 2002 edition of NFPA 490 (Ex. 2-6). To be consistent with the goal of specifying one requirement per paragraph, the proposal simply splits

the requirements in existing paragraph (i)(4)(ii)(b) into three separate paragraphs. Each of the three proposed requirements has been re-written in clearer language without changing the intent of the existing requirements.

Paragraph (d)(4)(v) would require the employer to ensure that ammonium nitrate bulk storage bins or piles are clearly identified by signs reading “Ammonium Nitrate” with letters at least 2-inches high. This proposed requirement is the same as existing paragraph (i)(4)(ii)(c) except that the proposed requirement uses the term “bulk storage bins,” as discussed earlier. It is also consistent with paragraph 6.2.4 of the 2002 edition of NFPA 490 (Ex. 2-6).

Paragraph (d)(4)(vi) would require the employer to ensure that bulk ammonium nitrate in piles or in bulk storage bins is loosened or moved periodically to minimize caking. This proposed requirement is the same as and replaces existing paragraph (i)(4)(iii)(a) except that it has been rewritten in clearer, more concise language. The word “loosened” was added to provide a better description of what OSHA intends the standard to require to prevent caking. The proposed paragraph is also consistent with paragraph 6.3.1 of the 2002 edition of NFPA 490 (Ex. 2-6).

Paragraph (d)(4)(vii) would require the employer to ensure that explosives are not used to break up or loosen caked ammonium nitrate. This proposed requirement is essentially the same as and replaces existing paragraph (i)(4)(iii)(d) except that it has been rewritten in clearer language using terms consistent with those defined in this proposed standard. The proposed requirement is also consistent with paragraph 6.3.4 of the 2002 edition of NFPA 490 (Ex. 2-6).

Paragraph (d)(4)(viii) would require the employer to ensure that the top of a bulk ammonium nitrate pile is no closer than 36 inches below the roof or supporting structure of the storage building. This proposed requirement is a change from existing paragraph (i)(4)(iii)(b) and paragraph 6.3.2 of the 2002 edition of NFPA 490 (Ex. 2-6). The existing requirement states that: “Height or depth of piles shall be limited by the pressure-setting tendency of the product.” Because this sentence is more of an informative statement and is not a safety requirement, OSHA is not retaining it in proposed paragraph (d)(4)(viii). Aside from the elimination of this sentence, the proposed paragraph has been rewritten in clearer language.

Paragraph (d)(4)(ix) would require the employer to ensure that bulk ammonium nitrate is not placed into storage when its temperature exceeds 130 °F. This proposed requirement is the same as and replaces existing paragraph (i)(4)(iii)(c) except that it has been re-written to be consistent with the similar requirement for storage of bags and containers in proposed paragraph (d)(3)(ii). Proposed paragraph (d)(4)(ix) is also consistent with paragraph 6.3.3 of the 2002 edition of NFPA 490 (Ex. 2-6).

Proposed paragraph (d)(5) contains requirements that address ammonium nitrate contaminants. Paragraph (d)(5)(i) would require the employer to ensure that ammonium nitrate is kept in its own building, or is separated from flammable, combustible, corrosive, explosive, or contaminating materials or processes by a wall with at least a 1-hour fire-resistant rating. The separation wall would have to extend at least to the underside of the roof. In lieu of separation walls, ammonium nitrate may be separated from these materials or processes by a space of at least 30 feet with means to prevent mixing, such as sills or curbs. This proposed requirement is a combination of requirements in existing paragraphs (i)(5)(i)(a) and (i)(5)(i)(b). For purposes of clarity and ease of compliance, OSHA proposes to replace the list of items

2

in existing paragraph (i)(5)(i)(a) that ammonium nitrate should be separated from with a description of the types of materials from which ammonium nitrate should be separated. OSHA believes flammable, combustible, corrosive, explosive, or contaminating materials or processes covers all items in the list in existing paragraph (i)(5)(i)(a) and would allow for any other materials or newly developed materials to be covered where the existing list might not include them due to its more restrictive scope. OSHA is concerned that a hazardous material not contained in the existing list could be misconstrued as being safe to store with ammonium nitrate. Also the alternate means to prevent mixing of materials (a 30-foot or more separation) contained in existing paragraph (i)(5)(i)(b) was included in proposed paragraph (d)(5)(i) to make the requirement self-contained for ease of compliance. The addition of a means to prevent mixing by use of sills or curbs was added to proposed paragraph (d)(5)(i) to be consistent with paragraph 7.1.3 of the 2002 edition of NFPA 490 (Ex. 2-6).

2

Existing paragraph 1910.109(i)(5)(i)(a) states that: “Ammonium nitrate shall be in a separate building or shall be separated by approved type firewalls of not less than 1 hour fire-resistance rating from storage of organic chemicals, acids, or other corrosive materials, materials that may require blasting during processing or handling, compressed flammable gases, flammable and combustible materials or other contaminating substances, including but not limited to animal fats, baled cotton, baled rags, baled scrap paper, bleaching powder, burlap or cotton bags, caustic soda, coal, coke, charcoal, cork, camphor, excelsior, fibers of any kind, fish oils, fish meal, foam rubber, hay, lubricating oil, linseed oil, or other oxidizable or drying oils, naphthalene, oakum, oiled clothing, oiled paper, oiled textiles, paint, straw, sawdust, wood shavings, or vegetable oils. Walls referred to in this subdivision need extend only to the underside of the roof.”

Paragraph (d)(5)(ii) would require the employer to ensure that flammable liquids are not placed or stored in buildings used for the storage of ammonium nitrate except where permitted by § 1910.106 and proposed paragraph (d)(5)(i) of § 1910.109. Section 1910.106 contains OSHA's general requirements for flammable and combustible liquids. Proposed paragraph (d)(5)(ii) is essentially the same as and replaces existing paragraph (i)(5)(i)(c) except that it has been rewritten in clearer language with redundancies and extraneous words removed. The proposed paragraph is also consistent with paragraph 7.1.4 of the 2002 edition of NFPA 490 (Ex. 2-6). In addition, proposed paragraph (d)(5)(ii) applies to the placement as well as the storage of flammable liquids in buildings used to store ammonium nitrate. OSHA is convinced that even short term placement of flammable liquids in such buildings can be hazardous unless adequate precautions are taken.

Paragraph (d)(5)(iii) would require the employer to ensure that no liquefied petroleum gas is placed or stored in a building used to store ammonium nitrate except in accordance with § 1910.110. Section 1910.110 contains OSHA's general requirements for storage and handling of liquefied petroleum gases. The proposed requirement is essentially the same as and replaces existing paragraph (i)(5)(i)(d). Proposed paragraph (d)(5)(iii) is also consistent with paragraph 7.1.5 of the 2002 edition of NFPA 490 (Ex. 2-6).

Paragraph (d)(5)(iv) would require the employer to ensure that sulfur and finely divided metals are not stored in the same building with ammonium nitrate. This proposed requirement is the same as and replaces existing paragraph (i)(5)(ii)(a) except that it has been rewritten in clearer language. Sulfur and finely divided metals can create a fire hazard and should be kept in a separate building from the ammonium nitrate building. The proposed paragraph is also consistent with paragraph 7.2.1 of the 2002 edition of NFPA 490 (Ex. 2-6).

OSHA is not retaining paragraphs (i)(5)(ii)(b) through (i)(5)(ii)(d) in the

existing standard because they focus on the storage of explosives (including blasting agents) rather than the storage of ammonium nitrate. As discussed earlier, the storage of explosives (including blasting agents) is covered by ATF regulations.

The final topic addressing the storage of ammonium nitrate deals with fire protection. Proposed paragraph (d)(6)(i) would require the employer to ensure that buildings in which greater than 2500 tons of ammonium nitrate is stored are equipped with an automatic sprinkler system that complies with § 1910.159. The proposed requirement is similar to and replaces existing paragraph (i)(7)(i). It is also consistent with paragraph 9.1.1 of the 2002 edition of NFPA 490 (Ex. 2-6).

Issue #10:

OSHA requests comments on the issue of automatic sprinkler systems for the storage of ammonium nitrate. In terms of employee safety, is it appropriate to only require an automatic sprinkler system for the storage of ammonium nitrate in quantities exceeding 2,500 tons? Should the storage of ammonium nitrate in quantities less than 2,500 tons, e.g. 1,000 tons, require an automatic sprinkler system? Should the storage of ammonium nitrate, regardless of quantity, always require an automatic sprinkler system? Alternatively, should OSHA consider eliminating the requirement for automatic sprinkler systems for ammonium nitrate storage? What evidence would support the elimination of this requirement?

Paragraph (d)(6)(ii) would require the employer to ensure that all fire protection equipment and systems in ammonium nitrate storage buildings meet the requirements of Subpart L, Fire Protection, of this part. This proposed requirement replaces existing paragraphs (i)(7)(ii)(a) and (i)(7)(ii)(b) and requires the use of the more updated and specific OSHA regulations for fire protection equipment and systems contained in subpart L.

Paragraph (e) Transportation of explosives.

As discussed earlier in the Authority to Regulate section of the preamble, OSHA has authority to regulate working conditions during the transportation of explosives. Unless otherwise specified, all the requirements in proposed paragraph (e) apply to the transportation of explosives both within and outside private facilities and worksites.

Proposed paragraph (e)(1) addresses general provisions associated with the transportation of explosives. Proposed paragraph (e)(1)(i) would require the employer to ensure that no employee smokes, carries matches or any other flame-producing device, or carries any firearms or cartridges (except firearms and cartridges required to be carried by guards) while in, or within 25 feet (7.63m) of, a vehicle containing explosives. This proposed requirement replaces a comparable requirement in existing paragraph (d)(1)(i) except this proposed paragraph includes an exception for firearms and cartridges required to be carried by guards. It is also consistent with paragraph 7.1.4 of the 2001 edition of NFPA 495 (Ex. 2-5).

Existing paragraph (d)(1)(i) states that: “No employee shall be allowed to smoke, carry matches or any other flame-producing device, or carry any firearms or loaded cartridges while in or

near

a motor vehicle transporting explosives” (emphasis added). To eliminate confusion over the meaning of the term “near” as used in existing paragraph (d)(1)(i), OSHA specifies in proposed paragraph (e)(1)(i) that such items and activities must remain at least 25 feet away from the vehicle. The proposed 25-foot requirement is also consistent with the Federal Motor Carrier Safety Administration requirements in 49 CFR 397.13.

Proposed paragraph (e)(1)(i), along with many others in this proposed transportation paragraph, uses the term “vehicle.” As discussed in the definitions section of this preamble, OSHA has defined the term “vehicle” in this proposal, as described in the preamble above when discussing definitions. The reason for defining and using the term “vehicle” is to eliminate any confusion created in the existing standard which uses several different terms, such as a motor vehicle, semitrailer, truck, and van, to describe a vehicle.

Paragraph (e)(1)(ii) would require the employer to ensure that no employee drives, loads, or unloads a vehicle containing explosives in an unsafe manner. This proposed requirement is essentially the same as and replaces a requirement in existing paragraph (d)(1)(i) except that it has been re-written in clearer language. It is also consistent with paragraph 7.1.5 of the 2001 edition of NFPA 495 (Ex. 2-5). To achieve the goal of specifying one requirement per paragraph, OSHA has split the requirements in existing paragraph (d)(1)(i) into two separate proposed paragraphs (e)(1)(i) and (e)(1)(ii).

Paragraph (e)(1)(iii) would require the employer to ensure that explosives are not transferred from one vehicle to another without informing local fire and police departments. This will help to ensure that the transfer is performed in a safe manner. In addition, a competent person must supervise the transfer of explosives. This is applicable to all transfer work whether it is done within private facilities or on public highways. A competent person is defined in proposed paragraph (b) as an employee designated by the employer who, by way of training and/or experience, is knowledgeable about applicable standards, is capable of identifying workplace hazards relating to explosives, and has authority to take appropriate corrective actions to control such hazards. Proposed paragraph (e)(1)(iii) would also require the employer to ensure that in the event of breakdown or collision, the local fire and police departments are promptly notified. Informing such local authorities will help to ensure that the breakdown or collision is handled in a safe manner. Proposed paragraph (e)(1)(iii) differs from existing paragraph (d)(1)(iii), but is compatible with paragraph 7.1.7 of the 2001 edition of NFPA 495 (Ex. 2-5). The existing requirement only requires a competent person when the transfer involves a disabled vehicle, whereas the proposal would require the supervision of a competent person whenever a transfer of explosives occurs between two vehicles, whether or not the transfer is caused by the breakdown of one of the vehicles. OSHA recognizes the risks involved in the transfer of explosives and proposes to ensure that this activity is always done under the supervision of a competent person as defined in paragraph (b).

Paragraph (e)(1)(iv) would require the employer to ensure that no repair work, other than emergency repairs that do not present a source of ignition, is performed on a vehicle containing explosives. This is a new requirement based on a recommendation in the Petition (Ex. 2-1). OSHA agrees with the Petition that there are risks involved in making vehicle repairs near explosives since certain repair work could be a source of ignition for the explosives in the vehicle. As a result, OSHA is only permitting such repair work in emergency situations when the work can be performed safely. The proposed paragraph is consistent with requirements in proposed paragraph (c)(4) discussed above.

Paragraph (e)(1)(v) would require the employer to ensure that detonators are not transported with other explosives in the same vehicle, unless packaged, segregated, and transported in accordance with the regulations of DOT (49 CFR chapter I) (Ex. 2-8). This proposed requirement replaces existing paragraph (d)(1)(iv) except that, instead of using the terms “blasting caps” and

“electric blasting caps” as in the existing paragraph, OSHA is proposing to use the term “detonators” (which includes blasting caps and electric blasting caps) to be consistent with the industry use of this term. The proposed paragraph is also consistent with paragraph 7.1.8 of the 2001 edition of NFPA 495 (Ex. 2-5).

Paragraph (e)(1)(vi) would require the employer to ensure that when explosives are transported on a railway car utilizing private railroad tracks, the car, its contents, and method of loading are in accordance with the regulations of DOT (49 CFR chapter I) (Ex. 2-8). This proposed requirement replaces existing paragraph (f)(1). While DOT regulations cover railway cars on public railroad tracks, the proposed requirement covers such cars on private railroad tracks. OSHA's intent here is to ensure that employees are provided the same level of safety when the railway car is on private tracks as compared to public railway tracks. The proposed language is also consistent with paragraph 11.1.1 of the 2001 edition of NFPA 495 (Ex. 2-5).

Paragraph (e)(1)(vii) would require the employer to ensure that explosives at a railway facility, truck terminal, pier, harbor facility, or airport terminal, whether for delivery to a consignee or forwarded to some other destination, are kept in a manner that minimizes risk to employees. This proposed requirement is changed somewhat from existing paragraph (f)(4) and paragraph 11.1.4 of the 2001 edition of NFPA 495 (Ex. 2-5). Compared to the existing requirement and the NFPA standard, the proposed paragraph places more emphasis on employee safety to ensure that risk to employees is minimized.

Paragraph (e)(1)(viii) would require the driver or other employee attending the vehicle be knowledgeable about the nature and hazards of the explosives contained in the vehicle and the procedures for handling emergency situations. This proposed requirement replaces a requirement in existing paragraph (d)(3)(iii) except that it has been updated and rewritten in clearer and more concise language. OSHA has eliminated the language in existing paragraph (d)(3)(iii) that refers to public safety because such issues are outside of OSHA's authority to regulate.

Proposed paragraph (e)(2) addresses vehicles used in the transportation of explosives. Paragraphs (e)(2)(i)(A) through (C) would require the employer to ensure that any vehicle used to carry explosives is able to safely carry the designated load, has close-fitting floors, and has wood or other non-sparking materials covering any exposed spark-producing metal on the inside of the vehicle body. Proposed paragraph (e)(2)(i) rewrites and simplifies the requirements in existing paragraph (d)(2)(i), putting the revised requirements into three separate proposed paragraphs, (e)(2)(i)(A) through (C). The proposed requirements are also consistent with paragraphs 7.2.1, 7.2.3, and 7.2.4 of the 2001 edition of NFPA 495 (Ex. 2-5).

Issue #11:

Existing paragraph (d)(2)(i) and proposed paragraph (e)(2)(i)(C) require the employer to ensure that any vehicle used to carry explosives has wood or other non-sparking materials covering any exposed spark-producing metal on the inside of the vehicle body. This is not consistent with paragraph 8.2.3 of the 2006 edition of NFPA 495 (Ex. 2-21) which requires: “Vehicles used for transporting frictional spark-sensitive explosive materials such as Black Powder and primary explosives shall have no exposed spark-producing surface inside of the cargo body.” Should the requirements in proposed paragraph (e)(2)(i)(C) only apply to frictional spark-sensitive explosives? Would such a limitation in proposed paragraph (e)(2)(i)(C) reduce the cost of transporting non-frictional spark-sensitive explosives?

Paragraph (e)(2)(ii) would require the employer to ensure that any vehicle containing explosives or oxidizers located at a private facility or blast site has exterior markings or placards designed and displayed in accordance with the regulations of DOT (49 CFR chapter I) (Ex. 2-8). This proposed requirement is a change from and replaces existing paragraph (d)(2)(ii)(a) which contains a table of required OSHA markings and placards. Since DOT already addresses vehicle markings and placards, and compliance with DOT regulations during the transportation of explosives outside of private facilities is required throughout the explosives industry, OSHA proposes to adopt DOT regulations and apply them to vehicles containing explosives or oxidizers in private facilities rather than continue to require a separate set of placards and markings. OSHA believes this proposed language will make it easier for employers to comply with placarding and marking requirements and will increase safety by eliminating any possible confusion created by different OSHA and DOT requirements for the similar activities. Since DOT placarding and marking regulations already cover transportation outside of private facilities, this proposed paragraph applies the same requirements to vehicles on private facilities.

Because OSHA proposes to reference DOT regulations for placarding and marking of vehicles, the placarding and marking requirements in existing paragraphs (d)(2)(ii)(c), (d), and (e) are no longer necessary and are not included in the proposed standard.

Proposed paragraph (e)(2)(iii) addresses open-bodied vehicles. Proposed paragraph (e)(3)(iii)(A) would require the employer to ensure that any explosives on an open-bodied vehicle are protected with a flameproof and moisture-proof tarpaulin or other effective means of protection from fire, sparks, and moisture. This proposed requirement is essentially the same as and replaces a requirement in existing paragraph (d)(2)(i) except that it has been re-written in clearer language and the proposed paragraph includes protection from fire as well as sparks and moisture. A similar requirement was contained in paragraph 421 of the 1970 version of NFPA 495 (Ex. 2-13). It is not, however, in the current 2001 edition of NFPA 495. While OSHA is not sure why this requirement was eliminated from the 2001 edition, it believes that this type of protection is still important for employee protection and proposes to retain this requirement in the proposed standard.

Paragraph (e)(2)(iii)(B) would require the employer to ensure that the explosives in open-bodied vehicles are not loaded above the sides of the vehicle. This proposed requirement is the same as and replaces a requirement in existing paragraph (d)(2)(i). This requirement was also in paragraph 421 of the 1970 version of NFPA 495 (Ex. 2-13) but is not in the 2001 edition. However, OSHA believes this to be an important requirement for employee protection and is proposing to retain it in this proposed standard. As discussed earlier, existing paragraph (d)(2)(i) is a very long requirement containing many separate requirements. To encourage better understanding, OSHA is proposing to split existing paragraph (d)(2)(i) into several paragraphs, each containing an individual requirement.

Proposed paragraph (e)(2)(iv) addresses the necessity for fire extinguishers in vehicles used to carry explosives. Paragraph (e)(2)(iv)(A) would require the employer to ensure that each vehicle used to carry explosives is equipped with at least two fire extinguishers filled and in good working order, each having a rating of at least 4-A:40-B:C. This proposed requirement is essentially the same as existing paragraph (d)(2)(iii) except that the required fire extinguishers have been upgraded to meet the standards in paragraph 8.2.6 of the 2006 edition of

NFPA 495 (Ex. 2-21). In addition, the changes in the proposed requirement were recommended by the Petition (Ex. 2-1).

Paragraph (e)(2)(iv)(B) would require the employer to ensure that each vehicle used to carry explosives has one fire extinguisher located in close proximity to the driver's seat. This proposed requirement is derived from existing paragraph (d)(2)(iii)(b) and paragraph 7.2.6 of the 2001 edition of NFPA 495 (Ex. 2-5). The extinguisher filling and examination requirements contained in existing paragraph (d)(2)(iii)(b) are addressed in proposed paragraph (e)(2)(v)(A), as discussed below. The multiple requirements contained in existing paragraph (d)(2)(iii)(b) have been split up in the proposed standard. OSHA believes this will make the proposed requirements easier to comply with and more understandable. In addition, the proposed requirement substitutes the term “in close proximity” for “near” which is used in the existing standard to describe the required location of the extinguisher in relation to the driver's seat. OSHA believes “in close proximity” is a more definitive term than “near” the driver's seat and is intended to convey the requirement that the vehicle driver have quick access to a fire extinguisher in the event of an emergency.

Paragraph (e)(2)(iv)(C) would require the employer to ensure that each vehicle used to carry explosives is equipped only with fire extinguishers listed or approved by a nationally recognized testing laboratory. The proposed requirement also refers to § 1910.155(c)(3)(iv)(A) for a definition of listed fire extinguishers and § 1910.7 for nationally recognized testing laboratories. This proposed requirement is essentially the same as and replaces existing paragraph (d)(2)(iii)(a). It is also consistent with paragraph 7.2.6.1 of the 2001 edition of NFPA 495 (Ex. 2-5).

Proposed paragraph (e)(2)(v) contains additional requirements for vehicles used for carrying explosives. Paragraph (e)(2)(v)(A) would require the employer to ensure that the fire extinguishers required in proposed paragraph (e)(2)(iv)(C) above are used, maintained, and tested in accordance with § 1910.157. This proposed requirement is changed from existing paragraph (d)(2)(iv)(a) in that the existing provision simply requires that extinguishers be filled and in working order without specifying how this should be done. Since OSHA has standards for portable fire extinguishers in § 1910.157, the Agency wants to emphasize in the proposed requirement that portable fire extinguishers in vehicles used for carrying explosives must comply with § 1910.157 requirements in addition to the requirements in this proposed standard.

Paragraph (e)(2)(v)(B) would require the employer to ensure that the use of fire extinguishers is restricted to fighting non-explosive fires involving tires, batteries, engines, cabs, etc., where the fire is not in imminent danger of reaching the explosive cargo. OSHA believes it is important to clarify that the fire extinguishers should not be used to fight explosives fires or fires that have the potentia

This text is long and has been trimmed here. Open the source document for the complete record.