Tenth Circuit decision affirms broad interpretation of “process” for Process Safety Management regulations

United States Publication April 2021

On October 27, 2020, the US Court of Appeals for the Tenth Circuit affirmed OSHA's expansive interpretation of a "process" under OSHA's Process Safety Management (PSM) standard in Wynnewood Refining Company, LLC v. Occupational Safety and Health Review Commission. The Court held that a vessel does not need to contain highly hazardous chemicals to be considered as part of a process under OSHA's PSM standard.

Wynnewood, LLC operated a refinery in Oklahoma. On September 28, 2012, Wynnewood, LLC's refinery was in the middle of a turnaround when the Wickes boiler exploded, killing two employees. As a result of the explosion, OSHA issued 12 violations of various provisions of OSHA's PSM standard, 29 C.F.R. § 1910.119. Eleven of OSHA's violations related to the Wickes steam boiler, which provided steam to a 225-pound steam header that was routed to various processes throughout the refinery.

Wynnewood, LLC argued that the Wickes boiler was not part of a covered "process" and, therefore, OSHA's PSM citations should be vacated. Under the PSM standard, a "process" is defined 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 Occupational Safety and Health Review Commission (OSHRC) rejected Wynnewood's argument and found that Wynnewood's Wickes boiler was covered under the PSM standard because the Wickes boiler was indirectly linked to the refinery's Alkylation Unit and Fluid Catalytic Cracking Unit ("FCCU"). OSHRC further reasoned that the term "interconnected" under the PSM standard made it irrelevant whether the Wickes boiler was "directly connected to, or involved, with the process."

On appeal, the Tenth Circuit affirmed, reasoning that "the Wickes boiler can be part of a process as defined in § 1910.119(b) even if it does not contain highly hazardous chemicals. [T]he text of the PSM regulation supports the [OSHRC's] finding that the Wickes boiler is part of a process covered by the regulation because it is interconnected with the FCCU and the alkylation unit."

The Tenth Circuit's decision has broad implications on OSHA's PSM standard, such as: (1) increasing the types of units that are covered under the PSM standard; (2) expanding the boundaries of current processes under the PSM standard; (3) increasing the costs to employers to ensure their equipment, processes, and employees are in compliance with PSM standards; and (4) posing the possibility that the Environmental Protection Agency (EPA) seeks to enforce OSHA's expansive definition of "process" under its Risk Management Program rule.

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