Does OSHA’s PSM Standard, 29 CFR § 1910.119 apply to LNG export facilities? No, and here is why…
OSHA’s PSM Standard, 29 CFR § 1910.119 does NOT apply to LNG facilities, including export facilities, subject to the U.S. Department of Transportation’s (DOT) pipeline safety regulation, 49 CFR Part 193. OSHA’s PSM Standard is preempted by DOT regulation, 49 CFR § 193 which addresses the same working conditions.
OSHA’s PSM standard MAY APPLY to LNG facilities if PHSMA is exempted from coverage. For example, 49 CFR § 193.2001(b)(2) exempts PHSMA from coverage of “LNG facilities used in the course of natural gas treatment or hydrocarbon extraction which do not store LNG.” Therefore, OSHA’s PSM Standard may apply to LNG PRETREATMENT PLANTS located offsite or beyond the property boundary of an LNG export terminal that involves natural gas treatment, or hydrocarbon extraction facilities that do NOT STORE LNG.
Section 4(b)(1) of the OSH Act, 29 U.S.C. 653(b)(1), provides that OSHA has no authority to regulate a working condition if another federal agency exercises statutory authority to prescribe or enforce a standard or regulation addressing that working condition. 49 CFR § 193 covers the siting, design, construction, operation, and maintenance of LNG facilities, including small-scale, peak-shaving, satellite, temporary, and mobile LNG plants, as well as large-scale import and export terminals. 49 CFR § 193 applies to LNG facilities that receive natural gas from or deliver natural gas to a pipeline subject to 49 CFR Part 192. 49 CFR § 193.2001(b) states that 49 CFR § 193 does not apply to:
(1) LNG facilities used by ultimate consumers of LNG or natural gas.
(2) LNG facilities used in the course of natural gas treatment or hydrocarbon extraction which do not store LNG.
(3) In the case of a marine cargo transfer system and associated facilities, any matter other than siting pertaining to the system or facilities between the marine vessel and the last manifold (or, in the absence of a manifold, the last valve) located immediately before a storage tank.
(4) Any LNG facility located in navigable waters (as defined in Section 3(8) of the Federal Power Act (16 U.S.C. 796(8)).
The National Fire Protection Association 59A (2001 edition) “Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG)” Section 2.1.1(d), through the incorporation of 49 CFR § 193 Subpart B – Siting Requirements, which incorporates by reference NFPA 59A (2001) Section 2.1.1(d), specifically requires LNG operators to consider factors applicable to the specific site that have a bearing on the safety of plant personnel and the surrounding public due to potential incidents, such as a toxic release at an LNG facility.
As evidenced by 49 CFR § 193, DOT has promulgated and enforces a standard, which addresses working conditions that OSHA’s PSM Standard, 29 CFR § 1910.119 addresses, at LNG facilities. Therefore, pursuant to Section 4(b)(1) of the OSH Act, OSHA’s PSM Standard does not apply to LNG facilities unless a 49 CFR § 193.2001(b) exemption applies. Moreover, in Secretary v. Texas Eastern Transmission Corp. (OSHRC Docket Nos. 4091 & 4078 October 28, 1975), the Occupational Safety and Health Commission held that the DOT regulations and the U.S. Department of Labor (DOL) regulations had the same objective – to minimize the consequences of accidentally released flammable liquefied natural gas. The regulations covered the same working conditions, thereby denying DOL of jurisdiction pursuant to Section 4(b)(1) of the OSH Act.
LNG facilities may handle highly flammable materials in excess of 10,000 lbs. For example, LNG export terminals typically use flammable refrigerants as part of their mixed refrigerant liquefaction system, and some liquefaction systems may use anhydrous ammonia as part of their liquefaction process. Although anhydrous ammonia is a highly hazardous chemical listed in Appendix A of OSHA’s PSM Standard, as explained above, the OSHA’s PSM standard does not apply to LNG facilities if DOT’s regulation, 49 CFR § 193, applies.
OSHA’s PSM standard may apply to LNG facilities, however, if a 49 CFR 193.2001(b) exemption applies. For example, 49 CFR 193.2001(b)(2) exempts PHSMA from coverage “LNG facilities used in the course of natural gas treatment or hydrocarbon extraction which do not store LNG.” Therefore, OSHA’s PSM Standard may apply to LNG pretreatment plants beyond the property boundary of a LNG export terminal such as natural gas pretreatment facilities or hydrocarbon extraction facilities that do not store LNG.
Lastly, to clarify and update OSHA’s existing policy regarding the application of OSHA’s PSM Standard to LNG facilities and natural gas distribution and transmission facilities, OSHA rescinds the Runyon LOI and Baly LOI (October 30, 1992). Like 49 CFR § 193, 49 CFR § 192 addresses the working conditions that OSHA’s PSM Standard does but at natural gas pipeline facilities. These LOIs state that OSHA is precluded from enforcing the PSM Standard over working conditions related to fire and explosion hazards at LNG facilities and natural gas distribution and transmission facilities. As explained above, DOT’s regulations address the same working conditions as OSHA’s PSM Standard. Therefore, pursuant to Section 4(b)(1) of the OSH Act, OSHA’s PSM Standard does not apply to these PHMSA jurisdictional facilities even outside of fire and explosion hazards.
OSHA, therefore, rescinds the Runyon LOI and Baly LOI.
OSHA coordinated with DOT’s Pipeline Hazardous Materials Safety Administration (PHMSA) to ensure this interpretation of natural gas and LNG facilities aligns with PHMSA’s regulatory requirements in 49 CFR § 192 and 49 CFR § 193, respectively. OSHA will continue to coordinate with PHMSA and determine jurisdiction over LNG pretreatment and hydrocarbon extraction facilities on a case-by-case basis. Please note that the U.S. Federal Energy Regulatory Commission and the U.S. Coast Guard also have regulatory authority over LNG facilities.
Source: https://www.osha.gov/laws-regs/standardinterpretations/2021-04-27