OSHA and MSHA jurisdiction at a fertilizer facility

September 25, 1991
Mr. Richard A. Uhlar
Industrial Hygienist
International Chemical Workers Union
[Recipient address omitted]

Dear Mr. Uhlar:

This is in response to your inquiry of April 9, regarding the Occupational Safety and Health Administration's (OSHA) enforcement jurisdiction at IMC Fertilizer, Inc. (Port Sutton facility), Tampa, Florida. Please accept our apology for the delay in responding.

As reported to Mr. Walter Fluharty, previously of your staff, in our letter of September 5, 1990 (copy enclosed), OSHA and the Mine Safety and Health Administration (MSHA) have been in communication to discuss this issue. We have recently exchanged correspondence that we feel resolves this jurisdictional question. A copy of this correspondence is enclosed.

In 1978, OSHA and MSHA entered into an Interagency Agreement which, among other things, delineated the agencies' respective areas of authority and sets forth principles for application of their respective statutes in the protection of workers. MSHA clearly believes that it should have sole jurisdiction over IMC Fertilizer's Port Sutton work site. Where another agency has exercised its statutory authority to prescribe or enforce standards affecting occupational safety and health, OSHA is preempted from applying its standards.

One of the primary issues of concern your original letter raised was the lack of employee training for those who would respond to an emergency release of ammonia. In light of IMC's contract with the local county Hazardous Materials Handling Team referenced to in the letter from Mr. Kenneth T. Howard of MSHA, this issue appears to be resolved.

If you do not agree with our resolution of this jurisdictional question, or have information which is contrary to the claims of the employer about the Port Sutton facility, as reported in Mr. Howard's letter, please contact OSHA's Directorate of Policy at (202) 523-8021.
Sincerely,
Alan C. McMillan
Deputy Assistant Secretary