The decision by the OSHRC settles several KEY PSM application debates. The accident involved a boiler that provided steam to a covered process and the boiler also used fuel from the refinery process(s) so OSHA took the position the boiler was part of the “covered process” because it was both interconnected and co-located such that the boiler could impact the covered process. The company attempted to use grammar and punctuation in OSHA’s definition of a “process” to argue that interconnected nor co-location were proper means to define a “process”. The four main topics discussed in this case are:
- “Interconnected” Vessels and Proof of Risk of Catastrophic Release
- Interconnection of Vessels
- Location of Wickes Boiler
- Workplace Fuel Consumption Exemption
This is a MUST read for all process safety professionals as these same arguments and rationale will apply to ALL “covered processes”.
BACKGROUND
The refinery processes crude oil and on a daily basis produces 70,000 barrels of gasoline, propane, propylene, butane, fuel oils, and solvents. The Wickes boiler, located about 100 feet from the reactor column in the refinery’s Fluid Catalytic Cracking Unit (FCCU), is one of four boilers in the refinery providing steam to the 225-pound “steam header,” which then routes steam for use in various processes throughout the facility. In hearing testimony, the Wickes boiler was described as “a major contributor into that steam header,” and “by far the workhorse of the plant for steam,” as it provides steam for, among other things, powering turbines and pumps, putting out small fires, “stripping” crude oil of certain substances during the refining process, and clearing the “FCCU riser” of hydrocarbons during emergency shutdowns.
The Wickes boiler is powered by two types of fuel: natural gas, which the refinery purchases, and refinery fuel gas (RFG), which is made from non-condensable, unsaleable, and flammable gas byproducts of the refining process. Natural gas and RFG are mixed in a fuel gas drum and the resulting fuel is then routed through a 4.1-mile-long pipeline network, including through a trunk line to the Wickes boiler. During times when no RFG is produced—such as when the refinery is shut down for maintenance, a period known as a “turnaround”—only natural gas is provided to the drum. On September 28, 2012, the refinery was in the middle of a turnaround, so the Wickes boiler was to be started up using only natural gas. During this start-up, however, too much natural gas was allowed into the boiler’s “firebox” — where fuel is burned to produce a flame — and shortly thereafter the boiler exploded, immediately killing one employee and critically injuring another, who died twenty-eight days later.
The day after the explosion, OSHA began an inspection of the refinery, which resulted in the issuance of three citations, with all items relating to the Wickes boiler—twelve of these citation items allege violations of the PSM standard; five of which are alleged as repeat violations. One month after the start of this first inspection, OSHA initiated a second inspection of the refinery, which resulted in the issuance of three more citations, addressing various conditions in the refinery; one of the citation items is alleged as a repeat violation of the PSM standard.
DISCUSSION
I. Applicability of the PSM Standard
The PSM standard “applies to… [a] process which involves a Category 1 flammable gas… or a flammable liquid with a flashpoint below 100°F… on site in one location, in a quantity of 10,000 pounds… or more.” 29 C.F.R. § 1910.119(a)(1)(ii). “Process” is defined 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,” and “[f]or purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process.” 29 C.F.R. § 1910.119(b). As such, the definition of “process” has two prongs—a vessel may be part of a covered “process” via interconnection or location.
The Secretary asserts that the Wickes boiler fits both prongs, alleging that the FCCU is a covered process and the boiler is both interconnected with it and located such that a catastrophic event could affect it. The judge agreed, finding that the Wickes boiler is interconnected with the Alkylation Unit and FCCU through the RFG pipeline, as well as interconnected with virtually all the refinery’s processes through the steam header, and concluding that the boiler was centrally located in the FCCU such that an event like the explosion in this case could result in a catastrophic release of a highly hazardous chemical (HHC). The judge also rejected the refinery’s contention that the Wickes boiler qualifies for the PSM standard’s workplace fuel exemption, which provides that “[h]ydrocarbon fuels used solely for workplace consumption as a fuel” are exempted from coverage “if such fuels are not a part of a process containing another [HHC] covered by this standard.” 29 C.F.R. § 1910.119(a)(1)(ii)(A).
The refinery asserts that the judge erred in several ways, arguing that:
(1) a mere physical connection between vessels is insufficient to make them a single process absent evidence that the cited vessel could cause a catastrophic HHC release—a showing the company contends the Secretary failed to make;
(2) in any event, the Wickes boiler was not in fact “interconnected” to a PSM-covered process because neither the RFG pipeline nor the steam header are sufficient connections under the standard;
(3) the Wickes boiler was not situated such that it could cause a catastrophic release from nearby covered processes; and
(4) the Wickes boiler’s use of RFG falls within the workplace fuel exemption because the only HHC or flammable gas that contacts the boiler is a small quantity of refinery and/or natural gas, all of which the boiler uses only as a fuel.
We begin with the company’s first contention, which raises an interpretation issue.
“Interconnected” Vessels and Proof of Risk of Catastrophic Release
The refinery contends that interconnected vessels do not form a single “process” unless each vessel is shown to pose a risk of catastrophic HHC release. The company argues that because there are no commas on either side of the following phrase in the standard’s definition of “process”—“and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release”—the “such that” phrase in the definition modifies “interconnected” as well as “located.” 29 C.F.R. § 1910.119(b) (defining “process” as “any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process”). The company, therefore, asserts that to prove interconnection, the Secretary must show that the cited vessel is connected to a covered process and could cause or contribute to a catastrophic release of HHCs.
Even without the commas, the definition’s repeated use of the word “which” sets up a parallel structure that on its face indicates two separate and complete conditions. This meaning is reinforced by the fact that while the phrase “which are located” cannot stand alone as a complete concept—to be meaningful, it needs the modifying phrase “such that a highly hazardous chemical could be involved in a potential release”—the phrase “which are interconnected” can stand alone.
Accordingly, we find that the plain meaning of the definition is that a single process consists of either “any group of vessels which are interconnected” or “separate vessels which are located such that a highly hazardous chemical could be involved in a potential release.”
Interconnection of Vessels
We turn next to whether the Secretary has shown that the Wickes boiler is interconnected with other vessels such that it is part of a PSM-covered process. It is undisputed that the FCCU and Alkylation Unit are PSM-covered processes by virtue of the flammables contained in each and as the judge found, the Wickes boiler is physically connected to both units through the RFG pipeline and to virtually all the refinery’s processes via the steam header. Indeed, the refinery acknowledges that the Wickes boiler was, at least indirectly, physically connected to the FCCU and Alkylation Unit. Nevertheless, the company argues that interconnection may be established only where multiple vessels are involved, and that the Secretary has failed to show that the boiler’s firebox is a “vessel” covered by the standard because it does not contain an amount of HHCs that exceeds the threshold quantity specified in § 1910.119(a)(1)(ii).
The refinery is correct that there is no evidence in the record that RFG—the only hydrocarbon handled by the Wickes boiler—exists anywhere in the refinery in an amount that exceeds the PSM standard’s threshold quantity, but the company’s focus on the boiler’s firebox and fuel is misplaced. The PSM standard does NOT require that an interconnected vessel itself contain the threshold quantity of HHCs—indeed, it does not even require that each vessel in an interconnected group contain HHCs at all. See 29 C.F.R. § 1910.119(b) (defining “process” as “any activity involving a highly hazardous chemical”). Thus, because the record shows that the Wickes boiler held water, it constitutes a “vessel,” and the status of the firebox has no bearing on the issue here. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 2547 (3d ed. 1986) (defining “vessel” as “a hollow and usu[ally] cylindrical or concave utensil… for holding something and esp[ecially] a liquid”); United States v. Sherburne, 249 F.3d 1121, 1126 (9th Cir. 2001) (“turn[ing] to the dictionary for guidance” in absence of statutory definition).
The refinery also argues that the two, indirect connections between the Wickes boiler and the FCCU and Alkylation Unit—namely, the RFG and steam systems—are insufficient to constitute interconnection under the standard because neither played a direct role in these processes. The judge, citing the Commission’s decision in Delek Refining, aff’d in relevant part, 845 F.3d 170 (5th Cir. 2016), rejected this argument, concluding that the link between the Wickes boiler and the FCCU is even more concrete than the equipment found to be part of the single process in Delek. The company contends that the judge’s reliance on Delek was error, and we agree—Delek is inapposite to the “interconnection” issue here. In Delek, the issue was whether the positive pressurization unit, which kept hazardous vapors from entering the FCCU control room at Delek’s refinery, was “process equipment” under § 1910.119(j)(4)(i). Thus, while Delek did address the PSM standard’s “process” definition, it focused on the first sentence and whether the positive pressurization unit was involved in the “manufacturing, handling [and] on-site movement” of HHCs, id. at 1371, not whether vessels were interconnected pursuant to the definition’s second sentence.
We find, however, that the indirect, physical link between the Wickes boiler and the FCCU and Alkylation unit is sufficient for PSM coverage. “Interconnect,” which the standard does not define, commonly means “to connect mutually or with one another,” and “interconnection” means “connection between two or more.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 1177 (3d ed. 1986); see Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276 (2009) (undefined term “carries its ordinary meaning”). These definitions contemplate the linking together of multiple objects, which necessarily includes an indirect link between some of them. This is in contrast with the word “connect,” a term the standard does not use, which describes a direct link—“to join, fasten, or link together usu[ally] by means of something intervening,” for example, “a bus line connects the two towns,” or “connect a garden hose to the faucet.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 480 (3d ed. 1986). In short, the PSM standard’s use of the term “interconnected” makes it irrelevant whether the Wickes boiler is directly connected to, or involved with, the processes of the FCCU and Alkylation Unit. The main point is that RFG generated by the FCCU and the Alkylation Unit is piped to the Wickes boiler, and steam from the boiler is piped to the FCCU and Alkylation Unit; the Wickes boiler is therefore one of a “group of vessels which are interconnected,” 29 C.F.R. § 1910.119(b), and therefore covered as part of a “process” by the PSM standard. 29 C.F.R. § 1910.119(a)(1)(ii).
Location of Wickes Boiler
Alternatively, the Secretary asserts that the Wickes boiler was covered by the PSM standard because it was “located such that a highly hazardous chemical could be involved in a potential release.” 29 C.F.R. § 1910.119(b). Before the judge, the refinery argued that the Secretary failed to make this showing because the Wickes boiler’s 100-foot distance from the FCCU reactor column, the closest part of the process containing HHCs, has not been shown to have been close enough to cause a catastrophic release of HHCs. In this regard the company asserted that there was no damage to any process equipment as a result of the explosion in this case, the nearby exhaust line carrying combustion byproducts does not contain any HHCs, and the testimony of the compliance officer and the Secretary’s expert is speculative regarding the explosion hazard. The judge rejected the company’s arguments as too heavily based on the particular explosion here and found that the boiler’s central location in the FCCU, coupled with the fact that debris from the boiler (such as a ladder, a platform, and pieces of the boiler’s bricklike lining) was propelled across the street toward an operator shelter, was sufficient to establish that the boiler’s location made it such that an HHC could be involved in a potential release.
On review, the company contends that the judge’s ruling is based on speculation. We disagree. The refinery asserts that to establish the location prong of the definition, the Secretary must prove that the potential for a catastrophic release was probable, BUT THIS IS NOT THE TEST. The standard itself states that vessels must be “located such that a highly hazardous chemical could be involved in a potential release.” 29 C.F.R. § 1910.119(b). The record here shows that the Wickes boiler was located centrally in the FCCU and confirms that the explosion, in this case, was strong enough to propel a ladder and platform forty feet into an operator shelter.
Also, the Secretary’s expert testified that the explosion could have been worse—“if they would have been producing steam [at that time], and if that boiler would have been under pressure, not only would you have had the firebox explode, as we saw, with shrapnel and walkways and all sorts of stuff flying all over the place, but you would have had a steam boiler explosion.” As such, the explosion here was not the worst-case scenario, and in the expert’s opinion, “an incident here at the boiler could definitely cause damage to other equipment, whether it be pipes or vessels in that facility.”
The refinery points out that the Secretary did not proffer evidence concerning the construction specifications of the FCCU, but the FCCU’s structural integrity is of no relevance, especially in light of testimony from Wynnewood’s own expert that he was “surprised maybe that the [fuel] lines [to the Wickes boiler] weren’t on fire” after the explosion. This acknowledgment that a fire hazard was present, along with the evidence discussed above, is sufficient to show that the Wickes boiler was “located such that a highly hazardous chemical could be involved in a potential release.” 29 C.F.R. § 1910.119(b).
Workplace Fuel Consumption Exemption
The final issue with regard to the applicability of the PSM standard to the Wickes boiler concerns The refinery’s contention that the boiler qualifies for the standard’s workplace fuel consumption exemption. The PSM standard does not apply to “[h]ydrocarbon fuels used solely for workplace consumption as a fuel (e.g., propane used for comfort heating, gasoline for vehicle refueling), if such fuels are not a part of a process containing another highly hazardous chemical covered by this standard.” 29 C.F.R. § 1910.119(a)(1)(ii)(A). The company argues that the Wickes boiler qualifies for this exemption because the only HHC that contacts the boiler is RFG produced at the refinery, which is used solely for fueling purposes. In rejecting this argument, the judge concluded that the exemption has a very limited scope and was not intended to cover process-related applications such as the Wickes boiler.
We agree.
The plain language of the exemption makes clear that fuels used for non-process-related uses—like “comfort heating” and for “vehicle[s]”—are not covered by the PSM standard. C.F.R. § 1910.119(a)(1)(ii)(A). Put another way, the Secretary cannot base PSM coverage on the mere presence of such a fuel in a workplace. Here, however, the PSM standard’s applicability is not based on either the RFG or the natural gas that is used to fuel the boiler; rather, it is based on the boiler itself, and its interconnection and location, as discussed above. Therefore, whether the RFG and natural gas used to fire the boiler could independently serve as a basis for applying the PSM standard—that is, whether this fuel is “used solely for workplace consumption”—is
irrelevant in this case.
For these reasons, we conclude that the PSM standard applies to the Wickes boiler.
DISCUSSION
Prior to answering the question of whether any particular standard was violated, the Court must resolve two important issues.
First, the Court must determine whether the PSM standards cited by Complainant apply to the Wickes boiler. Respondent contends that, by including the boiler within the ambit of the PSM standard, Complainant has improperly expanded the scope of the standard beyond its intended purpose, which is to “prevent[] or minimiz[e] the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals”. 29 C.F.R. § 1910.119. Consistent with that assertion, Respondent argues that although the boiler is physically connected to a PSM-covered process, the boiler itself is not subject to the PSM standards because it cannot contribute to, cause, or interfere in the mitigation of a catastrophic release of HHCs. See Delek Refining Co., Ltd., 25 BNA OSHC 1365 (No. 08-1386, 2015). In response, Complainant has asserted multiple theories of coverage to suggest that the boiler would have just such an impact.
Second, the Court shall also address the issue of successor liability in the context of the repeat violations issued to Respondent. As previously discussed, Wynnewood Refinery changed ownership in 2011. The purchase occurred after the underlying citations were issued but before the issuance of the citations that are currently under discussion. Complainant submits that the citations were properly characterized as repeat and bases that conclusion on the substantial continuity test for successor liability, which was adopted by the Commission in Sharon & Walter, 23 BNA OSHC 1286 (No. 00-1402, 2010). Respondent, on the other hand, contends that the changeover in ownership resulted in changes in management practices, procedures, and culture significant enough to break the chain of liability stemming from GWE’s previous actions.
Ultimately, based on what follows, the Court finds that the PSM standards did apply to the Wickes boiler. Complainant’s application of the standard under this set of facts comports with its plain language and is consistent with its historical interpretation of the standard.
A. PSM Coverage
i. The Standard – 29 C.F.R. § 1910.119
The stated purpose of the PSM standard is to “prevent[] or minimiz[e] the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals.” 29 C.F.R. § 1910.119. A catastrophic release, according to the standard, is “a major uncontrolled emission, fire, or explosion, involving one or more highly hazardous chemicals, that presents serious danger to employees in the workplace.” Id. § 1910.119(b). The standard sets a threshold quantity for various hazardous chemicals—that threshold quantity (TQ) represents the point at which a particular chemical is considered capable of producing a catastrophic release. See id. § 1910.119(a)(1).
In this case, the operative question is whether the Wickes boiler is a part of a “process which involves a Category 1 flammable gas (as defined in 1910.1200(c)) or a flammable liquid with a flashpoint below 100 °F (37.8 °C) on site in one location, in a quantity of 10,000 pounds (4535.9 kg) or more” such that the standard applies.
Such a determination would establish a prima facie case for coverage; however, the Court must also decide whether the exception for HHCs “used solely for workplace consumption of fuel” applies. See id. § 1910.119(a)(1)(ii)(A). As the title implies, the focus of this standard are processes involving highly hazardous chemicals. Insofar as a process involves a threshold quantity of HHCs, it is covered, subject to certain exceptions. A process, according to the standard, is:
[A]ny 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. For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process. Id. § 1910.119(b).
This definition indicates
(1) the basic understanding of a “process” and
(2) the potential boundaries for that process.
This was explained in more detail in the preamble to the standard, which states:
For all other chemicals, one must refer to Appendix A of 29 C.F.R. § 1910.119.
The term “process” when used in conjunction with the application statement of the standard establishes the intent of the standard. The intent of the standard is to cover a “process” where the use, storage, manufacturing, handling or the on-site movement of a highly hazardous chemical exceeds the threshold quantity at any time. The boundaries of a “process” would extend to quantities in storage, use, manufacturing, handling or on-site movement which are interconnected and would include separate vessels located such that there is a reasonable probability that an event such as an explosion would affect interconnected and nearby unconnected vessels which contain quantities of the chemical that when added together would exceed the threshold quantity and provide a potential for a catastrophic release.
In order to clarify this intent, a new sentence has been added to clarify the fact that interconnected and nearby vessels containing a highly hazardous chemical would be considered part of a single process and the quantities of the chemical would be aggregated to determine if the threshold quantity of the chemical is exceeded. Process Safety Management of Highly Hazardous Chemicals, 57 Fed. Reg. 6356, 6372 (Feb. 24, 1992).
ii. Complainant’s Theories of PSM-Coverage
Complainant asserts multiple bases upon which the Wickes boiler should be considered a PSM-covered process. Specifically, Complainant asserts that
(1) the Wickes is interconnected to a covered process through the refinery fuel gas system and steam header;
(2) the Wickes is located such that a HHC could be involved in a potential release involving other PSM-covered equipment;
(3) the exception for workplace fuel consumption does not apply; and
(4) Respondent treated the Wickes in its own internal documentation as a PSM-covered process.
In response, Respondent contends that
(1) Complainant’s interpretation of the standard improperly expands the scope of what is considered a “process”;
(2) the Wickes is not sufficiently close to PSM-covered equipment such that it could be involved in a potential release;
(3) the workplace fuel exception clearly applies; and
(4) the fact that it applied PSM-related practices to the Wickes is only reflective of “best practices” and not an admission of coverage.
1. INTERCONNECTION
The Wickes boiler, viewed in isolation, is not a PSM-covered process. There is no single point in time where it processes, uses, or holds a threshold quantity of HHC. Thus, the determination of whether it is covered necessarily depends on its connection or location relative to other covered processes. The dispute over interconnection stems from the second sentence of the definition of the term “process”, which states that “any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical could be involved in a potential release shall be considered a single process.” 29 C.F.R. § 1910.119(b) (emphasis added). Complainant asserts that the definition establishes two separate bases upon which coverage can be established:
(1) interconnected vessels; and
(2) separate vessels located such that a HHC could be involved in a potential release.
Respondent contends, however, that the modifier “such that a highly hazardous chemical could be involved in a potential release” is applicable to both separate and interconnected vessels, thereby grafting an additional burden of proof for establishing PSM coverage under a theory of interconnection.
The Court disagrees.
This dispute stems from what is known as the Motiva Response, which was a formal interpretation issued by Complainant in response to Motiva Enterprises., LLC, 21 BNA OSHC 1696 (No. 02-2160, 2006). (Ex. C-3). See also Interpretation of OSHA’s Standard for Process Safety Management of Highly Hazardous Chemicals, 72 Fed. Reg. 31453 (June 7, 2007). In Motiva, the Commission grappled with what it believed to be an undefined term within the PSM standard’s TQ requirements for flammables; namely, what constituted “on site in one location”.
Due to the lack of clarity within the application paragraph, and less than convincing evidence, the Commission vacated the citation and placed the onus on the OSHA to offer an “authoritative interpretation” that would be reviewed in future cases under “standard deference principles.”
In response, OSHA issued a formal interpretive document in the Federal Register.
First, OSHA agreed that the language “on site in one location” in the application paragraph has considerable overlap with the definition of process. This was due, in part, to the fact that the definition of “process” was revised in the final rule to clarify that a single process includes BOTH interconnected and co-located vessels, depending on proximity. Due to this change, OSHA noted that “the limitation placed on the application of the standard to flammable liquids and gases denoted by the related phrase ‘on site in one location’ no longer carries the independent weight it had before OSHA clarified the intended meaning of ‘process’. However, its import was not entirely diminished, as “it continues to serve a separate purpose by operating to exclude coverage where the HHC threshold would only be met only if all amounts in interconnected or colocated vessels were aggregated but some of the amounts needed to meet the threshold quantity are outside the perimeter of the employer’s facility.”
Second, and more pertinent to this case, OSHA clarified the burden of proof relative to interconnected versus co-located processes by stating that the PSM standard “presumes that all aspects of a physically connected process can be expected to participate in a catastrophic release.”. With respect to co-located processes, however, OSHA must prove that they are located such that a hazardous chemical could be involved in a potential release. Respondent takes issue with this formulation because it believes that such an interpretation is “in direct contradiction” with the plain terms of the standard. Resp’t Br. at 27.
Respondent’s primary argument in this regard is that “[t]he absence of punctuation between the term “interconnected” and “separate” establishes that the requirement that an HHC could potentially be involved in a release applies to both interconnected and co-located equipment.”
First, it is not clear what sort of punctuation Respondent is referring to. Second, the basic structure of the sentence belies Respondent’s argument regarding plain meaning. The sentence describes two configurations on either side of the conjunction “and” and concludes that either configuration constitutes a “process” for the purposes of the PSM standard. The first configuration is “any group of vessels which are interconnected”. The second configuration is “separate vessels which are located such that a highly hazardous chemical could be involved in a potential release.” In both cases, the noun is described through the use of a dependent clause, indicated by the term “which”.
In other words, there is a basic, parallel structure on either side of the “and”, which can be diagrammed as follows: “For the purposes of this definition, [A’s] which are [x] and [B’s] which are [y] shall be considered [C].” See 29 C.F.R. § 1910.119(b). When analyzed in this way, the Court finds that Complainant’s interpretation, as expressed through the Motiva response, comports with the plain meaning of the definition.
Let us assume, however, that Respondent is correct to the extent that the definition of process is ambiguous. If a determination cannot be reached based on the text and structure of the regulation, courts then turn to “contemporaneous legislative histories of that text.” On such contemporaneous legislative history is the preamble to the final rule. See generally 57 Fed. Reg. at 6356; see also 72 Fed. Reg. 31453.
The preamble provides a clear distinction between interconnected and separate vessels:
“The boundaries of a ‘process’ would extend to quantities in storage, use, manufacturing, handling or on-site movement which are interconnected and would include separate vessels located such that there is a reasonable probability that an event such as an explosion would affect interconnected and nearby unconnected vessels which contain quantities of the chemical that when added together would exceed the threshold quantity and provide a potential for a catastrophic release.” 57 Fed. Reg. at 6372.
This discussion, which provides contour to the definition of process, makes clear that the term “process” extends to interconnected vessels and includes separate vessels, insofar as such vessels could reasonably be expected to participate in a catastrophic release. Given this explanation, the Court still finds that the standard presumes the potential for a catastrophic release when vessels are physically connected.
Finally, even if the preamble is somehow considered deficient in its clarification, the Court finds that the interpretation espoused by Complainant is both reasonable and consistent with its longstanding interpretation of the issue. (“The weight of such [an interpretation] in a particular case will depend on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking the power to control.”). There is nothing patently unusual or unreasonable about considering vessels that are physically connected by pipeline to be part of the same process, nor is it unreasonable to presume that vessels connected in such a way could be involved in a potential release of HHCs. This has been Complainant’s interpretation of the standard since its inception. (Ex. C-4). Accordingly, the Court finds that Complainant’s interpretation of the standard is reasonable and, therefore, entitled to deference. (Secretary’s interpretation of a standard, even when embodied in a citation, is entitled to deference so long as it is reasonable).
According to the P&IDs involving the Wickes boiler, it is physically interconnected to otherwise-covered PSM processes in two ways.
First, the Wickes boiler is connected to both the Alky Unit and the FCCU through the RFG pipeline. It is undisputed that the Alky and the FCCU are PSM-covered processes by virtue of the quantity of flammables contained in each.
Second, the Wickes is connected to virtually all of the refinery’s processes through the 225-lb. steam header. As such, Complainant has, at the very least, established a prima facie case for PSM coverage, because interconnected processes are presumed to have the potential to participate in a catastrophic release. However, such a presumption could be rebutted by a showing that the interconnected processes at issue could not participate in or contribute to a catastrophic release.
Perhaps anticipating the potential failure of its argument regarding the presumption associated with interconnected processes, Respondent also argues that the Wickes should not be considered interconnected to a covered process under the terms of the standard. First, Respondent suggests that the Wickes is not a “vessel” because it does not store or contain any measureable quantity of HHC. Second, Respondent argues that the concept of interconnection, as espoused by Complainant, does not merely equate to a physical connection between equipment; rather:
[T]he concept of interconnectivity is merely intended to address a situation in which connected vessels within a single process that contain quantities of HHC, such as flammable gas storage tanks, will be deemed to satisfy the threshold requirement even though the amount of flammables in each individual vessel is less than 10,000 pounds. This theory does not operate to extend coverage to any structure, regardless of its form or contents, that is physically connected to a PSM-covered process.
The Court disagrees.
The Commission dealt with a similar attempt to narrow the scope of the standard in Delek Refining Co., Ltd., 25 BNA OSHC 1365 (No. 08-1386, 2015).
In that case, OSHA alleged that the employer violated a portion of the PSM standard by failing to inspect and test its positive pressurization unit (PPU) in the control room of its own FCCU.
The PPU was designed to pressurize the control room to prevent hazardous vapors, which are a byproduct of the FCC process, from entering the control room and poisoning the employees inside or causing an explosion hazard due to the presence of wiring, which could serve as an ignition source. Id. Delek contended that the PPU was not “process” equipment, because it was not directly involved (physically connected) in the process of converting crude oil to usable fuel.
Although the specific subsection of the PSM standard at issue in that decision was different, the Commission still had to address the question of what constitutes the boundaries of a process. The Commission made it clear that the focus of the standard—the process—was not as narrow as suggested by Respondent. According to the Commission:
[T]he PSM standard does not require that every part of a ‘process’ come into contact with hazardous materials. 29 C.F.R. § 1910.119(b) (defining ‘process’ as ‘any activity involving a highly hazardous chemical”) (emphasis added). Here viewing the ‘activity’ involving the FCC unit in its entirety, the PPU is part of a ‘process’ covered by the PSM standard because it is an integral part of the ‘manufacturing, handling [and] onsite movement of [highly hazardous chemicals].”
Citing favorably to an OSHA Interpretation Letter from Richard Fairfax to Howard J. Feldman, the Commission noted that machinery not containing HHCs can nonetheless be a part of a process insofar as such machinery is used to control, prevent, or mitigate catastrophic releases. Id. at *8–9. The Court finds that Respondent places undue emphasis on individual terms such as “vessel” and “interconnected” at the expense of the focus of the standard as a whole—the process.
As noted by the Commission, the definition of “process” is broad—it is any activity involving a HHC, including any use, storage, manufacturing, handling, or on-site movement. See 29 C.F.R. § 1910.119 (emphasis added). So broad, in fact, that the Commission held that the PPU in Delek’s FCC control room, although not a vessel, was part of the FCC process because it could affect or cause a release. Id.
In this case, the connection between the Wickes and the FCCU is more concrete: the offgases produced by the FCCU are directed via pipeline to a fuel drum, which mixes the off-gases treats them, and directs the resulting product to the Wickes. The Wickes is clearly an activity that involves a HHC, because it uses the treated off-gases from various processes around the refinery. It is, in fact, a downstream endpoint of the RFG process. (Tr. 838). During normal operations, there are multiple processes that feed the RFG system, including the FCCU and the Alky Unit. (Tr. 920, 1098). These processes, with the exception of a turnaround, are basically running all the time. (Tr. 1706). As the Court observed during the trial, the bypass valve that controls the flow of RFG can apparently be left open indefinitely without an alarm—it was not until CT Walker happened to look over the shoulder of CT Sutton and noticed a large amount of fuel in the firebox that the order was given to shut it down.
Further, the Wickes, which all witnesses testified is almost always running, requires a constant stream of fuel. Thus, even if the Court accepts Respondent’s assessment of the RFG pipeline’s capacity, which it determined to be 860 pounds of fuel, that assessment disregards the source of the fuel, such as the FCCU and the Alky, which feed the RFG system and are directly connected to the Wickes.
The Court cannot find any basis in the regulatory history or the language of the standard itself that would suggest such an arbitrary determination of what is interconnected.
The Court would like to make a brief note regarding the distinction between normal operations and turnaround operations. During normal operations, the system is fueled by a combination of refinery fuel gas and natural gas, whereas during a turnaround, the Wickes is run by natural gas because there are no other processes running to produce the RFG. While this might call into question whether the Wickes is covered during the period of a turnaround, the Court cites favorably to Respondent’s expert, Steve Arendt, who stated that the determination of whether a process is covered does not depend on whether it is in operation or in turnaround status.
In fact, Complainant has interpreted the term interconnected such that even energy-isolating devices, such as blocks, are not sufficient in and of themselves to break the connection between two physically connected processes. This also highlights the problematic nature of Respondent’s definition of interconnection, as it imposes artificial boundaries that do not comport with the plain reading of the definition of process.
Accordingly, the Court finds that the Wickes was interconnected to a covered process, and, as such, should be considered a single process. See 29 C.F.R. § 1910.119(b). Respondent further contends that even if the foregoing is true, the Wickes should still be exempt from coverage. According to section 1910.119(a)(1)(ii)(A), the following are exempted from PSM coverage: “Hydrocarbon fuels used solely for workplace consumption as a fuel (e.g., propane used for comfort heating, gasoline for vehicle refueling), if such fuels are not a part of a process containing another highly hazardous chemical covered by the standard.” Id. §1910.119(a)(1)(ii)(A). The intended scope of this rule was described in the preamble to the standard, wherein the American Petroleum Institute noted that OSHA’s intention in providing exemption (b)(1)(ii)(A) was to exclude the enormous number of small business locations across the nation which would not be covered by the proposed rule, except for their on-site storage of hydrocarbon fuels for low-risk applications such as heating, drying, and the like. Such activities are not the subject of this rule, and this exclusion is entirely appropriate.
On the other hand, interpreting this exclusion to apply to hydrocarbon fuels used for process-related applications such as furnaces, process heaters, and the like at facilities covered by the rule was not intended. 57 Fed. Reg. 6356, 6367.
At the very outset, this exception had a very limited scope: small businesses that used on-site hydrocarbon fuels “for low-risk applications such as heating, drying, and the like.” Id. (emphasis added). The exception was not, however, intended to cover processrelated applications such as process heaters and furnaces. Id. It is significant that this was recognized by API, which promulgates consensus standards covering the petroleum industry. See, e.g., 72 Fed. Reg. 31453, 31454 (citing API 750 as basis for definition of “process”). Thus, the issue is, again, one of degree: Is the Wickes, as compared to process heaters and furnaces, which are explicitly not covered under the exception, properly considered a part of a process involving another highly hazardous chemical covered by the standard?14 Respondent contends that furnaces and heaters are more directly linked to a process than a boiler, because furnaces and heaters typically apply heat directly to a product, whereas a boiler merely supplies steam to a header, which directs that steam to various processes around the refinery.
The Court is not convinced by the furnace versus boiler distinction urged by Respondent, nor is it convinced that the workplace fuel exception applies. Though the preamble mentions furnaces and process heaters as specific process-related applications, the list is not exhaustive, but exemplary. See 57 Fed. Reg. 6356, 6367 (exception does not cover “furnaces, process heaters, and the like”) (emphasis added). To the extent that process heaters, furnaces, “and the like” are the examples of what is not covered by the exception, and considering Respondent’s argument that there is a qualitative difference between the manner in which a furnace is connected to a process, as opposed to a boiler, the Court will address the manner in which the Wickes is connected to other PSM-covered processes and determine whether that connection is sufficient to establish PSM coverage.
While the Wickes is the downstream endpoint for the RFG system, it is also a starting point for many other process-related applications. The Wickes’ core function is to produce steam. That steam is used in multiple process-related applications throughout the refinery. For example:
(1) When the FCC emergency shut down (ESD) system is activated, steam is directed to the riser, where it knocks down gases to prevent further catalyzing of crude oil;
(2) Steam is used as a catalyst in certain reactions, driving high-end products from crude oil, also known as steam stripping;
(3) In normal operations and emergencies, steam was used as a primary source to drive turbines that pumped product and as a back-up to electric pumps;
(4) In the Alky, steam is used to snuff out low-lying gases and purge fugitive HHCs from the heater prior to lighting it (in much the same way that air is used to snuff gases in the Wickes);
(5) Steam is used as a heat medium in an exchanger, which transfers heat to a process; and
(6) Steam hoses are used to put out small fires on a process pipe.
On the face of it, all of these applications are a process-related to some degree. Nonetheless, Respondent contends that the steam producing system is a mere utility and that it has specifically determined that “the boiler could not cause or interfere in mitigating the consequences of a catastrophic release.”
Respondent, much like the employer in Delek, urges a narrow view of the concept of process-relatedness. In Delek, the employer cited an OSHA Interpretation Letter, which contained language stating that “‘[t]he boundaries of the covered process are based on the equipment which contain [highly hazardous chemicals].’” The Commission disagreed with such a narrow reading, focusing on the following language:
OSHA does not agree that utility systems are categorically outside the scope and application of the PSM standard. It is OSHA’s long-standing position that utility systems are part of the PSM-covered process when employers use them to control/prevent and mitigate catastrophic releases… .
[T]he proper safe functioning of all aspects of a process, whether they contain [highly hazardous chemicals] or not, are important for the prevention and mitigation of catastrophic releases of [highly hazardous chemicals], due to their direct involvement in the overall functioning of the process. As a result, it is OSHA’s position that if an employer determines that a utility system or any aspect or part of a process which does not contain a [highly hazardous chemical] but can affect or cause a release… then, relevant elements of PSM could apply to these aspects. OSHA’s position is that any engineering control, including utility systems, which meets the above criteria must be… inspected/tested/maintained per OSHA PSM requirements.
Here, Respondent cites the same letter, in addition to another interpretive document, for the essentially the same proposition.
Specifically, Respondent contends that, notwithstanding the numerous ways in which the Wickes is connected to various covered processes, it has analyzed those connections and specifically determined that the failure of the Wickes would not “cause a HHC release or interfere with the consequences of a HHC release… .” Like the employer in Delek, Respondent places significant emphasis on the “if an employer determines” language to argue that the determination of the boundaries of a PSM-covered process “is the responsibility of the employer, not Complainant.” While there is no doubt that the PSM standard is a performance standard, which allows an employer some discretion as to how a particular hazard should be addressed, “there is no indication in the language of the PSM standard or its regulatory history that OSHA meant to give to employers, at their sole discretion, the option of excluding equipment from the standard’s coverage.” Thus, the interpretive letter states that if an employer makes a determination that a component failure in the utility system cannot affect, cause, or interfere in the mitigation of a potential release, the employer must be able to proactively demonstrate why the utility system is no longer a part of a covered process. In other words, the determination must be reasonable.
Respondent argues that it conducted the analysis of the Wickes as described above and concluded that the boiler could not cause or interfere in mitigating the consequences of a catastrophic release. Specifically, Respondent points to the testimony of the PSM Manager who states that he considered the failure of the Wickes and other aspects of the 225-pound steam system as part of his analysis of a loss of heat to a covered process. The PSM Manager and Operations Manager concluded that a failure of the Wickes would not have such an effect because the other boilers that sourced the steam system could produce sufficient steam to continue operations at the refinery and that any temporary effects would only impact product quality. Respondent’s expert testified similarly. This determination, Respondent contends, was reinforced by the record evidence, including:
(1) the Wickes was taken offline once per year for an annual inspection;
(2) the refinery had redundancies in place such that only two of the four utility boilers were needed to contribute steam to the header.
Further, Respondent also argues that the snuffing steam system, as used in the Alky heater firebox, was only for small fires and that no evidence was presented to show that such a fire could cause a catastrophic release of HHC. The Court has a different perspective on the record evidence, as well as the sufficiency of Respondent’s determinations regarding the impact of a loss of steam on PSM-covered processes.
First, the PHA/Hazop analysis performed by the PSM Manager was, according to his testimony, focused on the impact of too little or too much heat being supplied by the Wickes and how that could cause a loss of containment. In response to a question regarding whether he was confident that he considered a loss of steam in all PHAs for covered processes, the PSM Manager stated, “I’m confident in that based on the questions you have to ask yourself in a HAZOP of too much heat or too little heat. And steam provides heat to our processes.” The problem, however, is that the functions described above are not limited to supplying heat to a particular process. It is also used to snuff out fires, remove HHCs from the FCC riser in emergencies, and purge HHCs from furnace fireboxes during the lighting process. Based on the Court’s review of the PHAs, there is no indication that the impact on these safety functions was considered.
Second, in an attempt to downplay the significance of the Wickes, the Operations Manager noted that it is one of four boilers on location at the refinery and that there is a redundancy system built in to reduce the refinery’s reliance on any one boiler. While this may be the case, there was no independent evidence, by way of PHAs or SOPs, to indicate that the system was designed this way. Further, Respondent’s employees testified that the Wickes was the workhorse of and a main contributor to the plant’s steam system. Respondent lent credence to that characterization by choosing the Wickes as the boiler of choice for the turnaround. Respondent recognized that problems with the Wickes and connected steam system could lead to process upsets. While those upsets likely had the most direct impact on product quality, there was also testimony that such upsets may also impact the use of certain safety measures associated with the steam system. That the safety measures associated with a covered process could be affected by a boiler system upset is alone sufficient to warrant finding a connection sufficient to establish the inapplicability of the exception.
Just because a redundancy system is built in does not remove a particular boiler from the ambit of the standard. See id. (“OSHA’s position is that any engineering control, including utility systems, which meets the above criteria must be… inspected/tested/maintained per OSHA PSM requirements.”). The key is the connection to the process, and whether a failure in that connection could have an impact on a potential catastrophic release of HHCs. As testified to by Rains, certain process upsets, if left alone for a long enough, can cause a catastrophic release. For example, what if the emergency shutdown system in the FCC Riser cannot be activated because the purported steam redundancy system failed? Under such a set of circumstances, surely it would be reasonable to conclude that a failure at the Wickes would have an impact on the system’s ability to control, prevent, and/or mitigate a catastrophic release.
As noted above, the Commission in Delek determined that the PPU in the control room was governed by the PSM standard. The PPU did not have a direct connection to the process; rather, it was a control to prevent the spread of harmful gases that were a result of the FCC process, which could, in turn, prevent the control room from managing the refining process. The connection of the Wickes to various processes throughout the plant was not nearly so attenuated. The Wickes provided steam, which was used directly on the various PSM-covered processes throughout the plant in both a production- and safety-related capacity. In its safety-related capacity, the steam provided by the Wickes served to control, prevent, and/or mitigate catastrophic releases through its use as a snuffing and purging agent. While such uses may not be a complete or sufficient control in and of themselves, the Court finds that such a connection is sufficient to bring the Wickes under the umbrella of the PSM standard. At a very basic level, the Wickes connected to PSM-covered processes on the front and back end: It is fueled by off-gases from the FCCU and Alky, and, in turn, it supplies steam to those same processes. The explosion in this case provides a clear example of how physical connections between processes can lead to a catastrophic release. There was no independent, automatic control that could stop the flow of fuel to the Wickes during the lighting process; the explosion that resulted from flooding the firebox was only mitigated by the fact that CT Walker happened to notice the overflow of fuel. Independent of that, there was nothing to impede the flow of fuel to the system (although it was natural gas, the same event could have occurred with RFG).
Further, to suggest, as Respondent has, that this was a worst case scenario disregards the fact that, but for CT Walker intervening, gas would have continued to flow to the firebox even after the explosion. In fact, Stephenson, the unit supervisor, testified that gas was released into the atmosphere as a result of the explosion, noting a smell of gas in the air. In light of the foregoing, the Court finds that the Wickes boiler is a critical aspect of multiple PSM-covered processes, is not subject to the workplace fuels exception, and, therefore, was properly cited under the PSM standard under a theory of interconnection.
2. PROXIMITY TO A COVERED PROCESS
An additional basis for coverage urged by Complainant is that the Wickes, independent of its connections to covered processes, was “located such that a highly hazardous chemical could be involved in a potential release”. 29 C.F.R. § 1910.119(b). As a result of the explosion, there was significant damage to surrounding equipment, including piping and valves; and the ladder and platform, which were attached to the Wickes, were blown across the street and hit the operator shelter.
Complainant contends that, in addition to the damage described above, parts of the FCCU process lines, including the Intercat loader and process pipe racks, could have been impacted by flying shrapnel. Based on its location relative to other aspects of the FCCU process, as reflected in the FCCU Equipment Location Plot Plan, Complainant’s expert, Johnstone, concluded that the Wickes’ location was such that it should be considered part of the FCCU process. See 29 C.F.R. § 1910.119(b). Respondent contends that the Wickes is not close enough to any covered process such that a highly hazardous chemical could be involved in potential release and, therefore, should not be considered a single process with any adjacent PSM-covered processes, such as the FCCU.
Respondent places significant emphasis on the way this particular explosion occurred to support its argument that the Wickes was not sufficiently close to a covered process to be considered a part of that process and therefore covered under the PSM standard. In particular, Respondent points out that the closest aspects of a process that contains any HHC is the FCCU reactor column, which is approximately 100 feet away. (Tr. 1214). Noting that there was no damage to equipment beyond a 10–15 foot radius, and that no release of HHC occurred, Respondent contends that this “worst-case scenario” shows that the Wickes could not participate in a catastrophic release.
The Court disagrees.
As noted by Complainant, the Wickes was centrally located in the FCCU Equipment Location Plot Plan. (Tr. 829–830, Ex. C-11). Thus, before any discussion of distance, the Court finds that the Wickes is at least situated such that it could impact co-located, covered processes, i.e., not in some remote location. As to distance, it is true that many of the covered processes are not located within the apparent radius of the blast zone (10–15 feet) as determined by Respondent; however, that assessment disregards one very large piece of shrapnel that traveled much further: the ladder and platform, which were previously attached to the Wickes.
As a result of the explosion, the ladder and platform attached to the east side of the Wickes were propelled across the street and hit the operator shelter. Arendt estimated the distance from the boiler to the shelter was about 40 feet. In addition to the ladder and platform, the photographs also show a significant amount of refractory that had been blasted across the street at the operator shelter. Had the ladder and platform simply been blown in a different direction as a result of the explosion, perhaps toward the FCCU, it is reasonable to assume a catastrophic release would have occurred.
The fact that a catastrophic release from an adjacent PSM-covered process did not actually occur under these circumstances does not, in any way, establish that such an eventuality could not occur. See 29 C.F.R. § 1910.119(b) (deeming as a single process separate vessels “which are located such that a highly hazardous chemical could be involved in a potential release”) (emphasis added). The fact that a larger explosion did not occur is likely attributable to two factors:
(1) CT Walker noticing the excessive flow of fuel to the firebox and directing the operators to shut it down; and
(2) the Wickes was being fueled by natural gas and was not using the RFG pipeline at the time of the explosion.
The Court is mindful of the fact that the explosion occurred shortly after the order to shut the bypass valve; however, the valve connecting the RFG and natural gas lines to the Wickes were within the blast radius, as exemplified in the photographs taken of the west end of the boiler after the explosion. If the boiler was running on RFG at the time, damage to the fuel lines or simply an inability to turn off the valve after the explosion could lead to a catastrophic release. Although Respondent has argued that the RFG system only contains approximately 1500 pounds of fuel gas at any given time, as noted before, that assessment does not take into consideration the source of that fuel—processes such as the FCCU and Alky. Under normal operations, the Wickes is constantly consuming fuel and the FCCU and Alky are constantly producing it. This constant loop of off-gas production and consumption leads the Court to conclude that Respondent’s attempt to place artificial boundaries on the RFG process such that a covered process would not be affected is misguided and disregards the concrete connection that exists between the Wickes and the FCCU, for example.
Perhaps the strongest justification for deeming the Wickes to be part of a single process, and thus PSM-covered, is the potential impact on the control room. As noted above, the ladder and platform assembly, along with a significant amount of refractory, were blown across the street and into the operator shelter, which housed CT Sullivan and CT Walker. In Delek, the Commission found that the control room (operator shelter) and the controls associated therewith were part of the overall FCC unit process:
Delek’s refining process includes operating the FCC unit as a whole, and this is done from the FCC unit’s control room, which is kept in safe working order by the PPU. Without the PPU providing positive pressure, hydrocarbon vapors could leak into the control room and—because of the wiring there—cause the type of catastrophic explosion that the PSM standard was intended to prevent. And short of such an explosion, the toxic vapors could harm the employees inside the control room, compromising the management of the refining process. We find, therefore, that the PPU is an integral part of the overall FCC unit “process.”
The key point in the passage above is that an incident, such as an explosion at the Wickes, which compromises the management of a PSM-covered process could cause the type of catastrophic event that the standard was designed to prevent. As such, the Commission held that even the positive pressurization unit (PPU), whose connection to a PSM covered process is even more attenuated than the control room itself, was governed by the PSM standards.
Throughout its brief, Respondent was intently focused on whether the putative impacted process contains a threshold quantity of HHCs. The Commission made it clear that the scope of the standard’s coverage is not so narrow. Instead, the Commission takes a holistic approach to the issue: “[T]he PSM standard does not require that every part of a ‘process’ come into contact with hazardous chemicals… . [V]iewing the ‘activity’ involving the FCC unit in its entirety, the PPU is part of a ‘process’ covered by the PSM standard because it is an integral part of the ‘manufacturing, handling, [and] on-site movement of [highly hazardous chemicals].” The Court sees no difference between the potential impact on the control room in Delek and the circumstances presented here, wherein the control room was actually in the line of fire of the explosion. Respondent was presented with direct evidence that this could be the case in 2008 when Respondent performed a blast study for the FCCU as part of the PHA revalidation of the Wickes. (Ex. R-94). At that time, Wynnewood determined that the operator shelter adjacent to the Wickes should be pressurized and hardened to meet overpressure requirements. (Ex. R-94). In other words, an integral aspect of a PSM-covered process could be impacted by an explosion at the Wickes. Nevertheless, Respondent maintained its narrow view and concluded that additional measures were unnecessary to protect process vessels and equipment in the FCCU. Based on the foregoing, the Court finds that the Wickes was located such that an event, like the explosion that occurred in this case, could affect or cause a catastrophic release.
Accordingly, the Court finds that the Wickes boiler is subject to the PSM standards under either the interconnection or proximity theory of coverage.
3. Respondent Treated Wickes as PSM-Covered
As further support for its argument that the Wickes was a PSM-covered process, Complainant contends that Respondent essentially treated the Wickes as such. Respondent argues that, to the extent it treated the Wickes as PSM-covered, it only did so as a matter of best practices and that taking additional precautions should not subject it to liability. The Court notes that while Respondent’s treatment of the Wickes, in and of itself, is not sufficient to establish PSM coverage, it undercuts Respondent’s claims that it conclusively determined that the PSM standard did not apply.
Complainant identified the following as examples of the Wickes being treated as part of a PSM-covered process:
(1) In 2008, the Wickes experienced a “hard start”, and the incident report characterized the event as a “PSM Incident”;
(2) the plot plan and various P&IDs for the FCCU include the Wickes; and
(3) Respondent performed Process Hazard Analyses (PHA) and implemented Management of Change (MOC) procedures on the Wickes.
The PSM Manager contends that he inadvertently checked the “PSM Incident” checkbox while inputting the findings of an hourly employee that assisted in the incident investigation and that such documentation does not reflect his or the refinery’s opinion as to PSM coverage. Further, Respondent claims that the PSM Manager determined the Wickes was not PSM-covered when the PHA revalidation for the Wickes was performed. Contrary to Respondent’s arguments, the Court cannot find any documentary evidence that Respondent made a conclusive determination that the Wickes was not PSM-covered. (“If an employer makes this determination, then, the employer must be able to proactively demonstrate why the utility system is no longer part of the covered process.”). The problem for Respondent is that the documentation that would normally be used to establish coverage does not reflect the sort of proactive demonstration of non-coverage; rather, as the Court indicated above, the evaluations performed by, or at the request of, Respondent either lack any affirmative determination of non-coverage or should have put Respondent on notice of potential coverage. See Section IV.A.ii.2, supra (discussing blast study and potential impact on adjacent operator shelter).
Instead, the PSM Manager testified that Respondent “must have ruled out” that an explosion at the Wickes would impact adjacent processes; however, even he admitted that his conclusion was “pure speculation”. While it is true that the PSM standard is performance-based, and thus places the onus on the employer to determine how to comply, Respondent has not provided a reasonable basis for its determination. As noted above, the PHA/Hazop analysis performed by the PSM Manager was focused on the impact of too little or too much heat being supplied by the Wickes and how that could cause a loss of containment. This analysis did not take into account numerous other ways in which a failure of the Wickes could impact other processes to which it was connected, such as snuffing steam in the Alky heater’s firebox and emergency steam to the FCC riser. This narrow view comports with Respondent’s arguments throughout and fails to account for the Wickes’ significant connections to covered processes throughout the refinery.
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