On Safety: Process safety management – the Wynnewood refining case

The U.S. Court of Appeals for the 10th Circuit recently issued a decision (No. 19-9533) on the appeal of OSHA citations related to process safety management at the Wynnewood Refinery in Wynnewood, OK. The court ruled in favor of the agency.

I suspect that this case has caused some consternation on the part of the industry regarding the future intent of OSHA based on this decision. But first, a little background as reported in the court’s decision.

Background: In September 2012, one of the Wynnewood Refinery’s boilers – the Wickes boiler – exploded because of an excess of natural gas that had accumulated inside. As a result of the explosion, two employees died. OSHA and the company agreed that the boiler didn’t contain highly hazardous chemicals in excess of PSM threshold quantities, and that at the time of the incident, it was operating on utility-supplied natural gas – not the usual refinery gas. But it was connected to two other parts of the refinery that did contain threshold quantities of HHCs – the fluid catalytic cracking unit and the alkylation unit.

Shortly after the explosion and the resulting fatalities, OSHA began an investigation into the incident. The agency ended up citing the refinery for various violations of 29 CFR 1910.119 (PSM), some of which were classified as repeat violations. The company contested the citations and an administrative law judge affirmed all but one of the violations. OSHA initially based the repeat violations on those that occurred under previous ownership, under the company name Wynnewood Inc., and not Wynnewood LLC. The judge changed the characterization of several of the violations from repeat to serious on the basis that the refinery was under substantially new management. Upon appeal of the judge’s decision to the Occupational Safety and Health Review Commission, the commission affirmed the judge’s decision.

OSHRC had determined that the Wickes boiler could be part of a PSM-covered process even though it didn’t contain threshold quantities of HHCs. OSHRC analyzed the text of 29 CFR 1910.119(b) and determined that the boiler was part of a process covered by the regulation – in other words, it was part of a “PSM-covered process” or was “PSM-covered.” This was based on OSHRC determining that the boiler was interconnected with the fluid catalytic cracking unit and the alkylation unit – both of which are covered under the 29 CFR 1910.119.

Second, the commission determined that the boiler “was covered by the PSM standard because it was ‘located such that a highly hazardous chemical could be involved in a potential release.’” Id. at 1152 (quoting 29 CFR 1910.119(b)). (A failure in the boiler system could affect the release of highly hazardous chemicals from the adjoining PSM-covered process, e.g., by proximity.)

Both OSHA and the company appealed the OSHRC decision. Wynnewood argued that the regulation at issue (PSM) didn’t apply to the Wickes boiler and that the commission erred in affirming those violations. The secretary argued that OSHRC erred by characterizing the violations as serious rather than repeat.