OSHA cited a refinery in 2008 for failing to inspect a piece of equipment known as the positive pressurization unit (PPU). The refinery contends that this citation is unlawful because the PPU is not encompassed by the relevant regulations. Because this dispute involves the interpretation of a binding regulation promulgated by the agency, we defer to the agency’s interpretation if the text is ambiguous and the agency’s interpretation is reasonable. Because we conclude that the relevant portions of Section 1910.119 are ambiguous and the Secretary’s interpretation is reasonable, we AFFIRM the citation for Item 8. Here’s what the court said:
The refinery contains a fluid catalytic cracking unit (FCCU). The process of fluid catalytic cracking involves “converting crude oil into usable fuels, such as gasoline, by a process that could release hazardous vapors.” This process is managed by the refinery employees from the FCCU control room. The PPU is located in the FCCU control room, and “consists of an intake stack that draws in outside air and a fan that pulls the air into the control room.” In so doing, the PPU maintains “positive pressure” inside the FCCU control room, thereby “keep[ing] harmful or hazardous vapors from entering the control room.” Without the PPU, hazardous vapors could enter the FCCU control room and harm the refinery employees managing the
fluid catalytic cracking process or react with wiring in the control room to cause a catastrophic explosion. The PPU also contains two sensors. One detects whether the FCCU control room is pressurized and triggers an alarm that indicates when it is not. The other detects the presence of combustible gas and will shut down the intake stack to prevent the gas from entering the control room if such gas is detected.
The parties do not dispute where the PPU is located, what it consists of, or what it does. They instead dispute whether the PPU is subject to the inspection requirements of 29 C.F.R. § 1910.119(j). Section 1910.119 applies to “a process which involves a Category 1 flammable gas” and further defines “process” as “any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals, or combination of these activities.” 29 C.F.R. § 1910.119(a)(1)(ii), (b).
Section 1910.119(j) requires employers to “establish and implement written procedures to maintain the on-going integrity of process equipment” and to perform “[i]nspections and tests . . . on process equipment.” § 1910.119(j)(2), (4)(i). Section 1910.119(j), in turn, defines “process equipment” as “the following”: “
(i) Pressure vessels and storage tanks;
(ii) Piping systems (including piping components such as valves);
(iii) Relief and vent systems and devices;
(iv) Emergency shutdown systems;
(v) Controls (including monitoring devices and sensors, alarms, and interlocks) and,
(vi) Pumps.
§ 1910.119(j)(1)(i)–(vi).
The Secretary argues that the PPU is subject to Section 1910.119(j)’s inspection regime because:
(1) the PPU is an integral part of the FCCU, which is a “process” under Section 1910.119(b); and
(2) the PPU is “process equipment” under Section 1910.119(j).
We will address these issues in turn.
1.
The Commission concluded that the PPU fits within Section 1910.119(b)’s definition of “process” because “the PPU is an integral part of the overall [FCCU] ‘process.’” On appeal, the Secretary urges us to accept this determination. While both parties agree that the FCCU is a “process” within the meaning of Section 1910.119(b), they dispute whether the PPU is a part of the FCCU process. We conclude, based on the undisputed facts as to the PPU’s function, that the Commission reasonably determined that the PPU is part of the overall FCCU “process” and is therefore covered by Section 1910.119(b). As the Commission indicated, the PPU serves an important function vis-à-vis the fluid catalytic cracking process by ensuring maintenance of positive air pressure within the FCCU control room and thereby preventing the flow of hazardous chemicals or vapors into the control room. In so doing, the PPU protects the refinery employees within the FCCU control room who are managing the fluid catalytic cracking process, and, in turn, plays a role in protecting the integrity of that process. Further, by preventing the flow of hazardous chemicals into the FCCU, the PPU prevents hazardous vapors from interacting with the wiring in the FCCU and potentially causing an explosion. In short, the PPU does far more than serve as a mere ventilation system; it plays an important part in ensuring the integrity of the fluid catalytic cracking process itself.
The refinery argues, however, that the PPU cannot be part of a “process” because it does not fit within the definition of “process” in 29 C.F.R. § 1910.119(b). Specifically, the refinery contends in its briefing that the activities listed in the definition of process – “use, storage, manufacturing, handling, or [ ] on-site movement” – show that a “process” is limited to the “containment of the highly hazardous chemical and the actual manufacturing of a product.” As the refinery correctly notes, the PPU does not contain any highly hazardous chemicals, nor does it use, store, manufacture or handle such chemicals — at least not in the ordinary sense of those terms. However, the Commission did not conclude – and the Secretary does not argue on appeal – that the PPU itself is a “process.” As noted, the Commission concluded that “the PPU is an integral part of the overall FCC unit ‘process.’”
As a result, the PPU need not independently constitute a “process” under Section 1910.119(b). But in any event, to the extent Section 1910.119(b)’s definition is pertinent to defining the parameters of a covered “process,” we do not agree that Section 1910.119(b)’s definition necessarily excludes the PPU. Section 1910.119(b) defines “process” broadly to encompass “any activity involving a highly hazardous chemical including any use, storage, manufacturing, handling, or the on-site movement of such chemicals …” 29 C.F.R. § 1910.119(b)
It is undisputed that the PPU operates to detect the presence of highly hazardous chemicals and gases and to prevent them from entering the FCCU. In performing this “activity,” the PPU undoubtedly “involv[es]” the very chemicals and gases that it detects and prevents from entering the FCCU control room.
The refinery argues, however, that the PPU does not fit within any of the specific activities listed in the definition of “process”— “use, storage, manufacturing, handling, or … on-site movement” of such chemicals. 29 C.F.R. § 1910.119(b). But the use of the term “including” within Section 1910.119(b)’s definition indicates that these forms of “involv[ement]” with highly hazardous chemicals are not an exhaustive listing.
See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 132
(Thomas/West 2012) (“[T]he word include does not ordinarily introduce an exhaustive list . . . .”). Thus, even assuming that the PPU’s involvement with highly hazardous chemicals does not fit within one of the examples listed in Section 1910.119(b), that fact would not clearly exclude the PPU from the definition of “process” in Section 1910.119(b).
The refinery further argues that the PPU “is simply too far removed from the [FCCU] to be considered part of the PSM-covered ‘process’ … .”
For this argument, the refinery relies on two interpretive letters from OSHA, one from January 2008 and the other from February 1997. According to the refinery, these letters indicate that equipment is part of a “process” only “if that system has a ‘direct involvement in the overall functioning of the process’ and ‘can affect or cause a release.’”
The 2008 OSHA Letter, however, makes it clear that utility systems (the type of equipment at issue in that letter) are within the “scope … of the PSM standard” if they are “use[d] … to control/prevent and mitigate catastrophic releases of [highly hazardous chemicals].” As indicated, the PPU plays a role in mitigating the release of highly hazardous chemicals by preventing their movement into the FCCU control room.
Likewise, the 1997 OSHA Letter indicates that a “process” encompasses equipment, even though that equipment does not contain highly hazardous chemicals, if it “could … interfere with mitigating the consequences of such a release.” See 1997 OSHA Letter, 1997. This statement, however, is broader than the refinery’s claim that equipment may be part of a “process” only if it has “a ‘direct involvement in the overall functioning of the process’ and ‘can affect or cause a release.’” Thus, we do not believe either of the prior OSHA Letters limited the scope of a “process” in the manner that the refinery asserts, or necessarily forecloses the Secretary’s interpretation here. Accordingly, we conclude that the Secretary reasonably interpreted Section 1910.119(b) in determining that the PPU is part of a “process.”
2.
The Secretary further contends that the PPU is “process equipment” subject to Section 1910.119(j)’s inspection regime. As noted, Section 1910.119(j) supplies an exhaustive list of categories that constitute “process equipment”:
(i) Pressure vessels and storage tanks;
(ii) Piping systems (including piping components such as valves);
(iii) Relief and vent systems and devices;
(iv) Emergency shutdown systems;
(v) Controls (including monitoring devices and sensors, alarms, and interlocks) and,
(vi) Pumps
29 C.F.R. § 1910.119(j)(1)(i)–(vi).
The Secretary argues – as the Commission determined – that the PPU is a “control” because it contains “sensors” and “alarms.” We agree. To begin with, we do not believe the term “control” in Section 1910.119(j) clearly excludes the PPU. That term is not elsewhere defined in Section 1910.119, and the regulation provides a non-exhaustive list of items that qualify as controls. See 29 C.F.R. § 1910.119(j)(1)(v) (“Controls (including monitoring devices and sensors, alarms, and interlocks”) (emphasis added)); see SCALIA & GARNER, supra, at 132 (“[T]he word include does not ordinarily
introduce an exhaustive list … .”).
We therefore find that there is sufficient ambiguity in the text of Section 1910.119(j) to accord deference to the Secretary’s interpretation of “control” if it is reasonable. We conclude that it is. Section 1910.119(j) lists “sensors” and “alarms” as examples of “controls.” See 29 C.F.R. § 1910.119(j)(1)(v). As noted, the PPU contains two sensors. The first sensor measures whether the FCCU control room has positive pressure, and this sensor is connected to, and triggers, an alarm when the control room is not fully pressurized. The second sensor detects the presence of combustible gas and shuts down the PPU intake stack when combustible gas is detected. Thus, because the PPU contains multiple sensors and an alarm that are critical to its function of ensuring that combustible vapors do not enter the FCCU control room, we conclude that the Secretary reasonably concluded that the PPU is a “control” within the meaning of Section 1910.119(j).
The refinery raises several objections in its briefs to reading “control” to encompass the PPU. First, the refinery argues that the PPU cannot constitute a “control” because Section 1910.119 is concerned with “containment of chemicals before release,” while the PPU “merely interrupts the spread of [hazardous] chemicals from one room to the next after the release has already occurred.” the refinery’s description of the Process Safety Management Standard, however, is inconsistent with the “Purpose” statement at the beginning of Section 1910.119 itself, which indicates that these standards are designed to “prevent[] or minimiz[e] the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals.” See 29 C.F.R. § 1910.119 (Purpose). Preventing the flow of hazardous chemicals into the FCCU control room after their release is undoubtedly a means of “minimizing the consequences” of such a release.
Second, the refinery notes that the Preamble to the Process Safety Management Standard indicates that “process equipment” must have “‘a significant impact on the safety of a process that is covered by [the PSM Standard].’” According to the refinery, because the FCCU’s process activities could continue even if the PPU failed, it cannot be considered “process equipment.” Again, we do not find this argument persuasive. The PPU does serve a safety function by preventing the flow of released hazardous chemicals into the FCCU control room. In so doing, the PPU not only protects the the refinery employees within that control room, but also protects the integrity of the FCCU process itself, which is managed by those employees.
Finally, the refinery and the amici argue that interpreting “control” in Section 1910.119(j) to encompass the PPU would lead to absurd results because a door, window, wall, or anything else that “‘interrupts the circulation of already released hazardous chemicals’” would constitute “process equipment.” This slippery slope argument, however, ignores the fact that the PPU’s purpose is to prevent the flow of hazardous chemicals into the FCCU control room. While a door, window, or wall may have this effect incidentally, they are not designed for this purpose as is the PPU, nor are they equipped with sensors and alarms to detect the presence of hazardous gases and to measure whether the FCCU control room is properly pressurized. Thus, we disagree with the refinery and the amici that upholding the Secretary’s interpretation of Section 1910.119(b) and (j) sweeps equipment only tangentially related to a covered process into the definitions of “process” and “process equipment,” or that it brings nonequipment, such as a door or window, into the ambit of those subsections. We therefore hold that the relevant provisions of Section 1910.119 do not clearly exclude the PPU from being a part of a “process” or “process equipment.” Because the Secretary’s interpretation is reasonable, we defer to that interpretation.
IV.
We hold that the citations for Items 4 and 12 are barred by Section 658(c)’s six-month statute of limitations. We also hold that the Secretary reasonably determined that the PPU is covered by 29 C.F.R. § 1910.119. Accordingly, we AFFIRM the citation for Item 8, which amounts to $6,300.
CLICK HERE for the FULL DECISION (which the court VACATED two other PSM citations)