After a boiler exploded at a refinery, OSHA cited the refinery’s owner for violating 29 C.F.R. § 1910.119, which sets forth requirements for the management of highly hazardous chemicals. The Occupational Safety and Health Review Commission (the Commission) upheld the violations. In doing so, it noted that the refinery had previously violated § 1910.119. But it determined that these prior violations occurred before the current owner owned the refinery and that they, therefore, occurred under a different employer. Accordingly, the Commission did not classify the violations as “repeat[] violations” under 29 U.S.C. § 666(a), which permits increased penalties for “employer[s] who willfully or repeatedly violate[]” the regulation.
The refinery appeals from the Commission’s order, arguing that § 1910.119 does not apply to the boiler that exploded. Because we find that § 1910.119’s plain text unambiguously applies to the boiler, we affirm the portion of the Commission’s order upholding the violations. Secretary of Labor Eugene Scalia (the Secretary) also appeals from the order, arguing that the Commission erred in failing to characterize the violations as repeat violations. Because we agree with the Commission that the current owner is not the same employer as the refinery’s previous owner, we also affirm the portion of the order concluding that these violations were not REPEAT violations.
NOTE: I always remove identifying information from my posts, but this case is so significant and when I used the simple phrase “refinery” rather than the name the post got confusing. So I have left the names of the businesses involved and left the name of the OSHA CSHO in this posting for MEMBERS ONLY.