On Safety: Process safety management – the Wynnewood refining case

On appeal of OSHRC decision, Wynnewood argued that:

• The Wickes boiler was not PSM-covered because it didn’t contain any HHCs.
• The boiler wasn’t PSM-covered because of either its interconnection with or location near a process.
• It shouldn’t defer to the secretary because the new interpretation deprived Wynnewood of fair notice. And, citing Kisor v. Wilkie, Wynnewood urged the court to interpret the regulation by examining its “text, structure, history and purpose,” even if the text of the regulation is unambiguous.

The court determined that because the Wickes boiler was an interconnected part of a PSM-covered process, it affirmed the PSM standard violations. And because OSHRC correctly applied the substantial-continuity test and substantial evidence supports its finding that Wynnewood Inc. and Wynnewood LLC weren’t the same employer, the court affirmed the characterization of violations as serious rather than repeat. Much of the above discussion was taken from U.S. Court of Appeals for the 10th Circuit’s decision, which can be read in full at https://law.justia.com/cases/federal/appellate-courts/ca10/19-9533/19-9533-2020-10-27.html.

The questions now being asked concern whether OSHA’s PSM enforcement policy will change based on this decision. The answer, in my opinion, is that no changes will be forthcoming. The Wynnewood Refinery decision simply affirmed how OSHA has always enforced co-location/interconnection. Many in the process safety consulting community have claimed that the decision has now expanded PSM. I believe that OSHA would disagree, and this decision affirms how this issue has always been enforced by the agency.

Further thoughts on Wynnewood: The boiler was in fact PSM-covered for several reasons, in roughly decreasing order of importance:

• The boiler normally ran on refinery gas, clearly interconnected to a greater-than-threshold quantity of flammable gas from various refinery units. At the time of the incident, it was running on natural gas, but there’s prior OSHA guidance and case law explaining that closing a valve doesn’t get you out of coverage.
• It was so located that an explosion could easily have impacted a covered process. As it happened, the debris missed, which was fortunate.
• The boiler produced steam that was used for safety critical functions, such as snuffing steam for flares and steam for purging process vessels.

If the boiler had been in a different location (isolated from any PSM-covered processes) and with appropriate barriers in place, I suspect OSHA wouldn’t have pursued PSM coverage in its incident investigation.