United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC Docket Nos. 13-0644 & 13-0791

WYNNEWOOD REFINING CO., LLC,

and its successors,

Respondent.

ON BRIEFS:

Ronald J. Gottlieb, Attorney; Charles F. James, Counsel for Appellate Litigation; Ann 

Rosenthal, Associate Solicitor of Labor for Occupational Safety and Health; M. Patricia 

Smith, Solicitor of Labor; U.S. Department of Labor, Washington, DC

For the Complainant

Nicole A. Smith, Esq.; Benjamin E. Stockman, Esq.; Venable LLP, Washington, DC, and 

New York, NY

For the Respondent

Richard Moskowitz, General Counsel, American Fuel & Petrochemical Manufacturers; 

Peter Tolsdorf, Senior Counsel, American Petroleum Institute; Eric J. Conn, Esq.; Conn 

Maciel Carey PLLC, Washington, DC

For Amici Curiae American Fuel & Petrochemical Manufacturers and American 

Petroleum Institute

DECISION

Before: MACDOUGALL, Chairman; ATTWOOD and SULLIVAN, Commissioners.

BY THE COMMISSION:

The Occupational Safety and Health Administration cited Wynnewood Refining Company, 

LLC, for—as relevant here—twelve violations of various provisions of OSHA’s Process Safety 

Management standard, 29 C.F.R. § 1910.119. Eleven of these violations involve the “Wickes” 

steam boiler at the company’s oil refinery in Wynnewood, Oklahoma, and four of those violations 

are characterized as repeat. The twelfth citation item alleges an additional repeat PSM violation 

related to the company’s alleged failure to develop and implement safe work practices for 
2

contractors. Following a hearing, Administrative Law Judge Brian A. Duncan affirmed all twelve 

violations as serious and assessed a total penalty of $58,000 for them.

Both parties petitioned for review of the judge’s decision. Wynnewood LLC contends that 

the Wickes boiler-related items should be vacated because the PSM standard does not apply to the 

boiler.1 The Secretary contends that the judge erred in rejecting his repeat characterization of five 

of the PSM items because, although the predicate violations were committed by a different 

corporate entity when it was owned by a different parent corporation, substantial continuity existed 

between Wynnewood LLC and the prior entity. For the following reasons, we affirm the judge’s 

decision.

2

 

1 Wynnewood LLC’s petition for discretionary review also asserts that the Secretary’s serious 

characterization of some of the PSM citation items at issue “shows the overreach of the PSM 

standard.” The Commission requested briefing on this issue as well as the applicability of the 

PSM standard, as a whole, to the Wickes boiler. The company, however, does not address the 

serious characterization issue in its review brief; so we consider that issue abandoned. See Am. 

Sterilizer Co., 18 BNA OSHC 1082, 1089 n.15 (No. 91-2494, 1997) (“Under Commission 

precedent, an issue raised in a petition for review or direction for review but not addressed in the 

party’s brief is treated as abandoned.”). The company did, though, include in its review brief 

challenges to the merits of each of the Wickes boiler-related items that go beyond the issue of 

applicability and were not raised in its petition. We decline to address these additional issues. See

Charles A. Gaetano Constr. Corp., 6 BNA OSHC 1463, 1468 n.7 (No. 14886, 1978) (“[Where a] 

respondent did not raise [an] argument in its petition for review[,] . . . the . . . issue is not before 

[the Commission].”); J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2204 (No. 87-2059, 1993) (“It 

is well-settled that the Commission has discretion to decline to entertain arguments by a party 

dealing with matters on which we did not request briefs.”).

2 Two motions remain pending before the Commission. The American Fuel & Petrochemical 

Manufacturers and American Petroleum Institute moved for leave to file an amicus brief. See 

Commission Rule 24, 29 C.F.R. § 2200.24 (“The brief of an amicus curiae may be filed only by 

leave of the Judge or Commission . . . [and] may be conditionally filed with the motion for 

leave.”). That motion is granted.

Wynnewood LLC moved for leave to file a sur-reply to the Secretary’s reply brief. See

Commission Rule 93(b)(3), 29 C.F.R. § 2200.93(b)(3) (“Additional briefs [other than opening and 

reply briefs] are otherwise not allowed except by leave of the Commission.”). The company’s 

counsel, however, included the sur-reply brief within the motion, which violates Commission Rule 

40(a), see 29 C.F.R. § 2200.40(a) (“A motion shall not be included in another document, such as 

a brief . . . , but shall be made in a separate document.”). In addition, the motion initially failed to 

“state . . . if [the Secretary] opposes or does not oppose the motion.” Id. Finally, the motion was 

filed almost six weeks after the Secretary filed his reply brief. Cf. Commission Rule 93(b)(1), 29 

C.F.R. § 2200.93(b)(1) (“Any reply brief permitted by these rules or by order shall be filed within 

15 days after the second brief is served.”). Accordingly, this motion is denied.
3

BACKGROUND

Wynnewood LLC’s refinery in Oklahoma processes crude oil and on a daily basis produces 

70,000 barrels of gasoline, propane, propylene, butane, fuel oils, and solvents. Prior to December 

2011, the refinery was owned and operated by Wynnewood Refining Company, a subsidiary of 

Gary-Williams Energy Corporation. On December 15, 2011, CVR Energy, Inc., acquired all the 

stock of Gary-Williams Energy Corporation and its subsidiaries, including Wynnewood Inc., 

which then registered with the State of Delaware as a limited liability corporation—Wynnewood 

LLC, the respondent here—on February 21, 2012.3

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 Wynnewood LLC

employee and critically injuring another, who died twenty-eight days later.

 

3 While it appears that Wynnewood Refining Company, when it was owned by Gary-Williams 

Energy Corporation, was a Delaware corporation, the record in this case is not entirely clear on 

this point. Nevertheless, we will refer to the entity that existed before February 2012 as 

“Wynnewood Inc.,” to distinguish it from Wynnewood LLC, the respondent here.
4

The day after the explosion, OSHA began an inspection of the refinery, which resulted in 

the issuance of three citations to Wynnewood LLC (Docket No. 13-0791), 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 

to Wynnewood LLC (Docket No. 13-0644), addressing various conditions in the refinery; one of 

the citation items is alleged as a repeat violation of the PSM standard.

Under Docket No. 13-0791, as relevant here, the judge affirmed eleven of the twelve 

citation items alleging violations of the PSM standard; four of which he characterized as serious 

instead of repeat.4 Under Docket No. 13-0644, as relevant here, the judge affirmed the one citation 

item alleging a violation of the PSM standard but characterized it as serious instead of repeat.

5

 In 

rejecting the Secretary’s repeat characterization of these affirmed items, the judge concluded that,

because the predicate PSM violations were committed by Wynnewood Inc. while it was a 

subsidiary of Gary-Williams Energy Corporation, those violations could not be attributed to 

Wynnewood LLC.

For the following reasons, we agree with the judge that the PSM standard applies to the 

Wickes boiler and therefore affirm the eleven items at issue on review that allege PSM violations 

 

4 Under Docket No. 13-0791, the seven PSM items in Serious Citation 1 at issue on review allege 

violations of: § 1910.119(d)(3)(i)(F), asserting that the Wickes boiler’s process safety information 

did not include design codes and standards (Item 1); § 1910.119(e)(3)(i), (e)(3)(iii), and (e)(3)(iv), 

based on two allegedly deficient process hazard analyses (Items 2a, 2b, and 2c); 

§ 1910.119(f)(1)(i)(A) and (f)(3), for having inadequate operating procedures and failing to review 

such procedures (Items 3a and 3b); and § 1910.119(l)(3), for failing to inform employees of a 

process change related to the Wickes boiler (Item 4). The four items in Repeat Citation 2 at issue 

on review allege violations of: § 1910.119(f)(1)(ii), in that the operating procedures for the Wickes 

boiler did not address the operating limits of the equipment (Item 2); § 1910.119(g)(2), for failing 

to provide refresher training to employees on operation of the Wickes boiler (Item 3); 

§ 1910.119(j)(2), for failing to implement written procedures related to the Wickes boiler (Item 

4); and § 1910.119(l)(1), for failing to implement procedures to manage changes related to the 

Wickes boiler (Item 5).

5 The additional PSM item that was cited as a repeat violation under Docket No. 13-0644 alleges 

a violation of § 1910.119(h)(2)(iv), for failing to implement safe work practices to control the 

entrance, presence, and exit of contract employers and employees near the Wickes boiler (Repeat 

Citation 2, Item 1).
5

relating to the boiler. We also agree that a repeat characterization is unwarranted for the five items 

on review.

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 Wynnewood LLC’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).

Wynnewood LLC 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 
6

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

Wynnewood LLC 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.”

6

 See, e.g., Cent. Fla. 

 

6 Wynnewood LLC argues that the purpose of the standard—“to prevent or mitigate against the 

consequences of a catastrophic release of HHCs,” 29 C.F.R. § 1910.119 (“Purpose” statement)—

would not be served by what the company characterizes as an “expansive” reading of the “process” 

definition. Courts, however, “cannot use . . . general statements of . . . purpose to override the 

plain meaning of specific provisions . . . .” Reeves v. Astrue, 526 F.3d 732, 737 (11th Cir. 2008). 

In addition, as the judge noted, “[t]here is nothing patently . . . unreasonable about considering 

vessels that are physically connected by pipeline to be part of the same process, nor is it 
7

Equip. Rentals, Inc., 25 BNA OSHC 2147, 2150 (No. 08-1656, 2016) (“Most OSHA standards 

regulate a particular condition and, therefore, presume the existence of a hazard.”); Oberdorfer 

Indus., Inc., 20 BNA OSHC 1321, 1330 (No. 97-0469, 2003) (consolidated) (29 C.F.R. 

§ 1910.219(c)(2)(i) “presumes a hazard” where “horizontal shafting [is] no more than 7 

feet . . . from the floor,” so “the Secretary is not obligated to show that the conditions in question 

are themselves hazardous in order to prove a violation”).7

 

unreasonable to presume that vessels connected in such a way could be involved in a potential 

release of HHCs.”

We also reject the company’s contention that OSHA failed to give the company notice that the 

Wickes boiler was to be treated as a PSM-covered process. The plain meaning of the provision 

provided sufficient notice of OSHA’s position in this case. See Ohio Cast Prods., Inc., 18 BNA 

OSHC 1912, 1915 (No. 96-0774, 1999) (“[I]n view of our conclusion that the standard’s . . . plain

meaning would be ‘ascertainably certain’ to an employer[,] . . . we conclude that [the employer] 

had fair notice of the means by which the cited standard provides for determining silica 

overexposure.”). In addition, we note that OSHA published an interpretation of the PSM standard 

in 2007, more than five years prior to the inspections at issue here, stating that “the definition 

establishes two distinct burdens of proof when considering the applicability of PSM to an 

interconnected or a co-located process,” with OSHA “presum[ing] that all aspects of a physically 

connected process can be expected to participate in a catastrophic release.” Interpretation of 

OSHA’s Standard for Process Safety Management of Highly Hazardous Chemicals, 72 Fed. Reg. 

31,453, 31,456-57 (June 7, 2007).

7 Chairman MacDougall does not join her colleagues in finding a plain meaning of the “process” 

definition, due to the definition’s grammatically incorrect use of “which.” When “which” is 

properly used, it is preceded by a comma and introduces a “nonrestrictive relative clause”; that 

clause “contains extra information that could be left out of the sentence without affecting the 

meaning.” Oxford Living Dictionaries, “That” or “which”?, Oxford University Press, 

https://en.oxforddictionaries.com/usage/that-or-which (last visited Mar. 21, 2019). By contrast, 

“that” introduces, without a comma preceding it, a “restrictive relative clause” containing 

“essential information about the noun that comes before it.” Id. Here, the “process” definition 

uses “which” without a comma, so any attempt to interpret the definition based on its plain 

language is guesswork at best, and impossible at worst.

To illustrate the confusion created by the drafters’ construction of this provision, if the sentence is 

read as a true “which”—i.e., unnecessary, extra information—it nullifies most of the words of the 

sentence:

[A]ny 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.
8

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, Wynnewood

LLC 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).

Wynnewood LLC 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 

 

However, if the sentence is read as using a “that”—i.e., essential information—then the statutory 

interpretation would be that of her colleagues. Unfortunately, the drafters chose “which” and thus, 

Chairman MacDougall would conclude that, due to poor drafting, the definition is ambiguous.

Nevertheless, Chairman MacDougall finds that the Secretary’s interpretation of the “process” 

definition is reasonable and entitled to weight based on the entirety of the circumstances, including 

the consistency of the Secretary’s interpretation. See, e.g., 72 Fed. Reg. at 31,456-57. See also 

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“The weight of [an interpretation] in a 

particular case will depend upon 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 power to control.”).
9

v. Sherburne, 249 F.3d 1121, 1126 (9th Cir. 2001) (“turn[ing] to the dictionary for guidance” in 

absence of statutory definition).

Wynnewood LLC 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, Ltd., 25 BNA OSHC 

1365 (No. 08-1386, 2015), 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). Delek Refining, 25 BNA OSHC at 1370. 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 
10

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, Wynnewood LLC 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.

Wynnewood LLC 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.

8

 Also, the Secretary’s 

 

8 The parties argue over what this operator shelter was, as well as the significance of it. The 

Secretary—citing the testimony of the refinery’s process safety manager—asserts that the operator 

shelter was another name for the FCCU control room. Wynnewood LLC contends that there is a 

distinction between the control room and the operator shelter, the latter of which was within 40 

feet of the Wickes boiler but housed no controls related to the Wickes boiler, FCCU, or any other 

PSM-covered process. The precise identification of the operator shelter, however, is immaterial 
11

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.” 

Wynnewood LLC 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 acknowledgement 

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 applicability of the PSM standard to the Wickes boiler 

concerns Wynnewood LLC’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.

9

 We agree.

 

to the issue at hand. Given the testimony of the Secretary’s expert regarding the potential for 

damage to equipment, vessels, and piping resulting from a boiler explosion, the significance of the 

operator shelter was to show the strength of the blast (given that the shelter was 40 feet away), not 

that damage to the shelter, in particular, would compromise FCCU processes.

9 While the judge did not address which party bears the burden of proof with regard to the 

exemption, it is phrased as an exception, see § 1910.119(a)(1)(ii) (“This section applies to . . . [a] 

process which involves a Category 1 flammable gas . . . except for . . . .”), so Wynnewood LLC 

must show that it applies. See C.J. Hughes Constr., Inc., 17 BNA OSHC 1753, 1756 (No. 93-
12

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. 29 

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.10 For these reasons, we conclude that the PSM standard applies to the 

Wickes boiler.

II. Repeat Characterization

The Secretary contends that the judge erred in rejecting his repeat characterization of five 

items—Docket No. 13-0791, Citation 2, Items 2 through 5, and Docket No. 13-0644, Citation 2, 

Item 1. The citations for the prior violations underlying these repeat items were issued to 

Wynnewood Inc.; they became final orders of the Commission in the fall of 2008, when the 

refinery was owned and operated by Wynnewood Inc., then a subsidiary of Gary-Williams Energy 

Corporation. The judge rejected the Secretary’s repeat characterization based on his finding that 

“holding [Wynnewood LLC], a separate and distinct . . . entity, responsible for what [Wynnewood 

Inc.] did in the past . . . expands repeat liability beyond what the Commission envisioned in” 

Sharon & Walter Construction, Inc., 23 BNA OSHC 1286 (No. 00-1402, 2010). We agree.11

 

3177, 1996) (“A party seeking the benefit of an exception to a legal requirement has the burden of

proof to show that it qualifies for that exception.”).

10 We note that even if the PSM standard’s applicability here depended on the mere presence of 

RFG or natural gas, the exemption would still not be met. The preamble “clarif[ies] [OSHA’s] 

intent not to exclude from coverage hydrocarbon fuels used for process[-]related applications such 

as furnaces, heat exchangers and the like,” and that is exactly how the RFG and natural gas were 

being used here—to heat the Wickes boiler. 57 Fed. Reg. at 6367. Rather, the intent, as explained 

by the American Petroleum Institute in commenting on the proposed rule, was in part “to exclude 

the enormous number of small business locations across the nation which would not be covered 

by the . . . rule, except for their on-site storage of hydrocarbon fuels for low-risk applications such 

as heating, drying, and the like,” which “are not the subject of” the standard. Id.

11 On review, Wynnewood LLC renews an additional argument that was rejected by the judge—

that OSHA failed to comply with its own internal citation policy given that the underlying citations 

became final orders more than five years prior to the ones at issue here. As we have consistently 
13

In Sharon & Walter, the Commission concluded that “in appropriate circumstances, [the 

Secretary may apply] a ‘repeat’ characterization to cases where the cited employer has altered its 

legal identity from that of the predecessor employer whose citation history forms the basis of that 

characterization.” Id. at 1293. In “consider[ing] . . . the circumstances under which a 

predecessor’s citation history may be attributed to a cited successor employer,” the “focus is on 

whether there is ‘substantial continuity’ between the two enterprises,” which depends on factors 

falling into three categories: (1) the nature of the business, because “continuity in the type of 

business, products/services offered and customers served indicates that there has been no 

substantive change in the enterprise”; (2) the jobs and working conditions, because these have a 

“close correlation with particular safety and health hazards”; and (3) continuity of the personnel 

who specifically control decisions related to safety and health,” because “the decisions of such 

personnel relate directly to the extent to which the employer complies with the statute’s 

requirements.” Id. at 1294-95.

As the judge found, the issue here comes down to the third category given that the 

refinery’s business, products, jobs, and working conditions were the same under both entities. 

Indeed, the Commission recognized in Sharon & Walter the particular importance of continuity of 

personnel, stating that the same “control over decision-making in both companies . . . weighs 

heavily in favor of attributing . . . [the prior employer’s] citation history to [the cited employer].”12 

Id. at 1295-96. Here, several of the day-to-day managers were in the same positions under 

Wynnewood Inc. and Wynnewood LLC, including the refinery’s vice president of refining, safety 

manager, PSM manager, operations manager, and two supervisors in Zone 2, where the Wickes 

boiler is located. The record also shows, however, that high-level executives of Wynnewood 

LLC’s current parent company, CVR Energy—such as the executive vice president for operations 

 

held, however, OSHA’s citation policy is “only a guide for OSHA personnel to promote efficiency 

and uniformity, [is] not binding on OSHA or the Commission, and do[es] not create any 

substantive rights for employers.” Hackensack Steel Corp., 20 BNA OSHC 1387, 1392 (No. 97-

0755, 2003). In other words, “there are no statutory limitations upon the length of time that a 

citation may serve as the basis for a repeated violation.” Id. See also Triumph Constr. Corp. v. 

Sec’y of Labor, 885 F.3d 95, 99 (2d Cir. 2018) (“[T]he Commission did not abuse its discretion by 

relying on previous violations more than three years old, because neither the [OSHA Field 

Operations] Manual nor the Commission’s precedent limits OSHA to a three-year look back 

period.”).

12 In Sharon & Walter, Walter Jensen was the sole proprietor of both the predecessor and successor. 

23 BNA OSHC at 1288.
14

and the vice president of environmental health and safety—took an increased role in day-to-day 

operations at the refinery, and they were present frequently to oversee the transition from 

Wynnewood Inc. under Gary-Williams Energy Corporation to Wynnewood LLC under CVR 

Energy. This new management focused on improving safety, health, and the proper 

implementation of PSM at the refinery. Moreover, as the judge noted: the number of refinery 

safety personnel was nearly doubled, including four new assistant operations supervisors 

responsible for occupational safety compliance; $130 million of equipment upgrades were made; 

more formalized training programs were developed and implemented; and there was a renewed 

emphasis on management of change procedures. These leadership changes resulted in a safety 

culture shift at the refinery.

13

In light of the foregoing, we find these are not the appropriate circumstances to affirm a 

repeat characterization. This is not a case where “the cited employer has altered its legal identity 

 

13 We note that our dissenting colleague lists nine individuals employed by both Wynnewood LLC 

and Wynnewood Inc. with titles indicating safety and health responsibilities, and she asserts that 

it is inappropriate to consider management changes above their level following the purchase by 

CVR Energy because the new parent company is a distinct corporate entity. The record, however, 

shows that safety policy at the refinery was not controlled by these managers, either before or after 

the purchase. Regardless of whether as a matter of corporate law the managers our colleague 

references had the right to refuse instructions from either of their parent entities, the record shows 

that these managers merely implemented the safety policies set by the previous parent company 

and then by CVR Energy. Consequently, after the refinery was purchased, the safety policies at 

the refinery changed significantly as a direct result of the different attitude toward safety CVR 

Energy brought to bear. As operations manager Darin Rains testified, “[t]he refinery went through 

some pretty drastic changes as a result of the purchase by CVR Energy,” including increasing the 

number of safety personnel. Indeed, David Johnson, a safety specialist at the refinery, described 

how Chris Swanberg, CVR Energy’s Vice President for Safety, Health, and Environment, told 

managers “very clearly and very emphatically that, under his watch . . . safety was the highest 

priority at the refinery,” and that this resulted in specific safety-related changes:

Safety training was a priority. Our budget for safety was pretty open. If there was 

a safety issue, it was addressed immediately. If we couldn’t resolve it, then . . . it 

kept going up to the next level to get resolution. You know, it was a very dramatic 

change.

(Emphasis added.) In short, a rote application of the “continuity of personnel” prong that considers 

only the management personnel working for each Wynnewood entity paints an inaccurate picture 

of how safety policy was set and how safety decisions were made at the refinery. As such, unlike 

our dissenting colleague, we conclude that Wynnewood LLC’s changeover in ownership resulted 

in changes in management practices, procedures, and culture significant enough to break the chain 

of liability stemming from Wynnewood Inc.’s previous actions.
15

from that of the predecessor employer . . . [simply to] avoid a repeat characterization.” Id. at 1293. 

On the contrary, the record does not support the Secretary’s contention that there was sufficient 

continuity in the safety personnel at the cited entity such that “there was a Commission final order 

against the same employer for a substantially similar violation.”

14 Hackensack Steel Corp., 20 

 

14 While we agree that the last prong of the three-part “substantial continuity” test (continuity of 

personnel) was not met in this case—and that Wynnewood Inc. and Wynnewood LLC are therefore 

not the same employer for repeat characterization purposes under Sharon & Walter—in our view 

this may not even be the appropriate test for determining whether successor liability should be 

imposed for purposes of the Occupational Safety and Health Act. We are in favor of revisiting 

Sharon & Walter, because the view expressed by Commissioner Thompson in that case seems 

persuasive—that the substantial continuity test is not appropriate in determining whether a 

violation has been properly characterized as repeat. See 23 BNA OSHC at 1296 n.19.

In addition, we see no rationale here for imposing the OSHA violation history of Wynnewood Inc. 

upon Wynnewood LLC, a separate legal entity not created to avoid responsibilities under the Act. 

See id. at 1293 (repeat characterization appropriate “where the cited employer has altered its legal 

identity from that of the predecessor employer whose citation history forms the basis of that 

characterization”). This is particularly true here where the new management focused on improving 

safety, health, and the proper implementation of PSM at the refinery. Nonetheless, given that the 

Secretary’s repeat characterization has been rejected pursuant to Sharon & Walter, and in light of 

the parties’ failure to ask the Commission to revisit that case (and the lack of briefing on this 

particular issue), this question will have to wait for another day.

Chairman MacDougall notes on this issue, however, as she did in Delek Refining, Ltd., 25 BNA 

OSHC 1365 (No. 08-1386, 2015), aff’d in part, 845 F.3d 170 (5th Cir. 2016), that the “general 

rule that a purchasing entity does not have successor liability applies, such that a corporation that 

purchases another corporation ‘is not responsible for the seller’s debts or liabilities, except where 

(1) the purchaser expressly or impliedly agrees to assume the obligations; (2) the purchaser is 

merely a continuation of the selling corporation; or (3) the transaction is entered into to escape 

liability.’ ” Id. at 1378 (MacDougall, Comm’r, concurring and dissenting) (quoting Golden State 

Bottling Co. v. NLRB, 414 U.S. 168, 182 n.5 (1973)). As she observed in Delek, “[t]he Supreme 

Court has referred to the ‘free transfer of capital’ and the concern of placing restrictions on 

successor employers, which might reduce the incentives purchasers have to take over failing 

businesses, as factors to be considered in shaping successorship doctrine.” Id. n.6 (citing Howard 

Johnson Co. v. Detroit Local Joint Exec. Bd., Hotel & Rest. Emps. & Bartenders Int’l Union, 417 

U.S. 249, 255 (1974); NLRB v. Burns Int’l Sec. Servs., Inc., 406 U.S. 272, 287-89 (1972)).

Commissioner Sullivan notes, as did Commissioner Thompson in Sharon & Walter, that the 

substantial continuity test was developed and adopted from cases decided by the National Labor 

Relations Board in evaluating “the continuing obligations of a successor toward a majority union 

under the National Labor Relations Act.” 23 BNA OSHC at 1296 n.19. The OSH Act does not 

serve this purpose, so the doctrine appears particularly inappropriate when deciding whether a 

predecessor entity’s prior violations should be attributed to a successor. Commissioner Sullivan 

agrees with Commissioner Thompson that under the OSH Act, “common law master-servant 
16

BNA OSHC 1387, 1392 (No. 97-0755, 2003) (emphasis added). Accordingly, we find that a repeat 

characterization is not warranted here.

15

CONCLUSION

For all the foregoing reasons, we affirm, under Docket No. 13-0791, Citation 1, Items 1, 

2a, 2b, 2c, 3a, 3b, and 4, and Citation 2, Items 2, 3, 4, and 5, as serious violations. We also affirm, 

under Docket No. 13-0644, Citation 2, Item 1, as a serious violation. 

Given that Wynnewood LLC does not contest the penalty amounts on review, we assess 

the penalties for these items that the judge assessed—for Docket No. 13-0791, Citation 1, Item 1, 

a penalty of $7,000; for Items 2a, 2b, and 2c, a grouped penalty of $7,000; for Items 3a and 3b, a 

grouped penalty of $7,000; for Item 4, a penalty of $7,000; for Citation 2, Items 2, 3, 4, and 5, a 

penalty of $7,000 each; and for Docket No. 13-0644, Citation 2, Item 1, a penalty of $2,000—for 

a total penalty of $58,000. See KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-

1416, 2008) (assessing proposed penalty where penalty not in dispute).

SO ORDERED.

/s/

Heather L. MacDougall

Chairman

/s/

Dated: March 28, 2019 James J. Sullivan, Jr.

Commissioner

 

principles apply, including the ‘alter ego,’ doctrine, which is reflected in the federal common law.” 

Id. Further, “the Commission has the authority to apply this common law equitable remedy to 

examine the violation history of a predecessor because denial to the Commission of veil piercing 

authority in appropriate circumstances would not be consistent with United States v. Bestfoods, 

524 U.S. 51 (1998).” Id. In short, Commissioner Sullivan believes the common law speaks more 

directly to successor liability with respect to the OSH Act and to the question of whether a violation 

is properly characterized as repeat. The substantial continuity test, on the other hand, while 

appropriate for collective bargaining agreements, creates in his view a disincentive for employers 

when it comes to hiring or keeping employees of the predecessor entity if applied in the repeat 

characterization context.

15 Chairman MacDougall notes that, given the Commission’s conclusion that Wynnewood Inc. 

and Wynnewood LLC are not the same employer, there is no need to reach the issue of whether 

there is substantial similarity between the prior and current violations; therefore, there is no reason 

to address Commissioner Attwood’s discussion of Angelica Textile Servs., Inc., No. 08-1774, 2018 

WL 3655794 (OSHRC June 24, 2018), appeal docketed, No. 18-2831 (2d Cir. Sept. 21, 2018).
1

ATTWOOD, Commissioner, concurring and dissenting in part:

I agree with my colleagues’ conclusions in Part I of their opinion, in which they find that 

the PSM standard applies to the Wickes boiler under both “interconnect[ion]” and “locat[ion],” 29 

C.F.R. § 1910.119(b), and that Wynnewood LLC has failed to show that the standard’s workplace 

fuel consumption exemption applies, see 29 C.F.R. § 1910.119(a)(1)(ii)(A). Accordingly, I join 

my colleagues in affirming the Wickes boiler-related items at issue. I do not, however, join Part 

II of their opinion, which rejects the Secretary’s repeat characterization of five of the violations 

we affirm.

Longstanding Commission precedent holds that a “violation is repeated under section 17(a) 

of the [Occupational Safety and Health] Act if, at the time of the alleged repeated violation, there 

was a Commission final order against the same employer for a substantially similar violation.” 

Potlatch Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979). For the reasons that follow, I would 

conclude that under this precedent: (1) Wynnewood Inc. (the recipient of the prior citations) and 

Wynnewood LLC (the respondent here) are the same employer for purposes of a repeat 

characterization; and (2) the prior and instant violations are substantially similar and therefore 

must be characterized as repeat. Accordingly, I would affirm Docket No. 13-0791, Citation 2, 

Items 2 through 5, and Docket No. 13-0644, Citation 2, Item 1 as repeat violations.

I. Substantial Continuity of Corporate Entities

The Commission held in Sharon & Walter Construction, Inc., 23 BNA OSHC 1286 (No. 

00-1402, 2010), that a repeat characterization may be appropriate “where the cited employer has 

altered its legal identity from that of the predecessor employer whose citation history forms the 

basis of that characterization.” Id. at 1293. In deciding whether “a predecessor’s citation history 

may be attributed to a cited successor employer,” the Commission must determine “whether there 

is ‘substantial continuity’ between the two enterprises,” which requires the consideration of 

“factors that essentially fall into three categories”—(1) the nature of the business; (2) the jobs and 

working conditions; and (3) the continuity of personnel who “specifically control decisions related 

to safety and health.” Id. at 1294-95. It is undisputed that the facts relevant to the first two 

categories of factors weigh in favor of substantial continuity of the two entities. My colleagues’ 

analysis of the third category of factors, however, is problematic.

The majority decision concedes that “several of the day-to-day managers were in the same 

positions under Wynnewood Inc. and Wynnewood LLC.” Nevertheless, my colleagues decline to 
2

find substantial continuity between these entities because two executives of Wynnewood LLC’s 

new parent company— CVR Energy, Inc.—“took an increased role in day-to-day operations at the 

refinery.” This focus on high-level executives (here, CVR Energy’s executive vice president for 

operations and vice president of environmental health and safety) of a different corporate entity 

than the cited employer is misplaced. As noted, the issue is whether there is substantial continuity 

of safety and health personnel “between the two enterprises”—the entity that was issued the prior 

citation and the entity that was issued the instant one. See id. at 1294 (emphasis added). The 

executives for CVR Energy would only be relevant to this inquiry if the record established that the 

entity cited here (Wynnewood LLC) and CVR Energy were a “single employer,” an issue that was 

neither alleged by either party nor litigated. See N.L.R.B. v. Greater Kansas City Roofing, 2 F.3d 

1047, 1051 (10th Cir. 1993) (“[T]he corporate form will be disregarded” only “[i]n extreme 

circumstances,” and “the corporate veil should be pierced only reluctantly and cautiously.”); see 

also Advance Specialty Co., 3 BNA OSHC 2072, 2076 (No. 2279, 1976) (“[W]hen . . . two 

companies share a common worksite such that the employees of both have access to the same 

hazardous conditions, have interrelated and integrated operations, and share a common president, 

management, supervision or ownership, the purposes of the [OSH] Act are best effectuated by the 

two being treated as one.”); C.T. Taylor Co., 20 BNA OSHC 1083 (No. 94-3241, 2003) 

(consolidated) (prohibiting Secretary from citing employers separately for willful violations where 

both companies were owned by the same individual, and one company was “fully in charge of [the 

other’s] operations” and “assumed the responsibility for employee safety on the [combined] 

job[site]”). The issue in this case, therefore, turns on the extent of the continuity of personnel 

between Wynnewood LLC and Wynnewood Inc.

The record shows that most of Wynnewood LLC’s supervisors, PSM managers, and safety 

officials responsible for OSH Act compliance held the same or similar positions for Wynnewood 

Inc.:

▪ Wayne Leiker was Vice President of Refining for both Wynnewood Inc. and 

Wynnewood LLC.

▪ Dan Looney was the refinery’s safety manager for both Wynnewood Inc. and 

Wynnewood LLC.

▪ Dick Jackson was the refinery’s process safety manager for both Wynnewood 

Inc. and Wynnewood LLC.

▪ Darin Rains was operations manager for both Wynnewood Inc. and 

Wynnewood LLC.
3

▪ Mitch Underwood and Troy Stephenson were supervisors in Zone 2 of the 

refinery (where the Wickes boiler was located) under both Wynnewood Inc. 

and Wynnewood LLC.

▪ Kyle McCurtain was a technician in Zone 2 for Wynnewood Inc., and he was 

promoted to supervisor by Wynnewood LLC.

▪ Paul Howard was a technician in Zone 2 and a member of the refinery’s 

supervision for both Wynnewood Inc. and Wynnewood LLC.

▪ David Johnson, a safety specialist, worked for the two entities for a total of 

eighteen years.

Given this extensive overlap in supervisory personnel, I would find that substantial 

continuity has been established under Sharon & Walter. Cf. 23 BNA OSHC at 1296 (“[C]ontinuity 

of nonsupervisory employees among the two companies is not significant . . . because those 

employees are not responsible for OSH Act compliance and would not have supervised its 

implementation.”). Indeed, the supervisors working for both Wynnewood Inc. and Wynnewood 

LLC were officials responsible for OSH Act and PSM compliance. Leiker and Looney headed, 

for both Wynnewood Inc. and Wynnewood LLC, the certification of abatement efforts in 

connection with prior settlements with OSHA. And Jackson managed the PSM program for both 

entities, in particular relating to process hazard analyses, pre-startup safety reviews, and 

management of change. See 29 C.F.R. § 1910.119(e) (“Process hazard analysis”), (i) (“Pre-startup 

safety review”), (l) (“Management of change”). In addition, Rains was responsible for the entirety 

of the operations department for both Wynnewood Inc. and Wynnewood LLC, and Underwood 

was responsible for reviewing and updating standard operating procedures for various pieces of 

refinery equipment, including the Wickes boiler. See 29 C.F.R. § 1910.119(f) (“Operating 

procedures”). Finally, Howard assisted Stephenson in implementing PSM requirements for the 

FCCU. Thus, while parent company executives may have changed, the personnel who, as a 

practical matter, actually controlled refinery safety on a daily basis for the pertinent entities

remained the same under both Wynnewood Inc. and Wynnewood LLC. As such, I would attribute 

the prior Wynnewood Inc. violations to Wynnewood LLC for purposes of a repeat 

characterization.

II. Substantial Similarity of Violations

To establish a repeat violation, the Secretary must also show that “at the time of the alleged 

repeated violation, there was a Commission final order . . . for a substantially similar violation.” 

Potlatch Corp., 7 BNA OSHC at 1063. “[P]roof that an employer has committed a prior violation 
4

of the same standard constitutes a prima facie showing by the Secretary of substantially similar 

violations.” FMC Corp., 7 BNA OSHC 1419, 1421 (No. 12311, 1979). Here, the Secretary has 

made such a showing—the repeat characterization of each of the five violations at issue is based 

on a prior violation of the very same standard. The Commission has recently stated, however, that 

“[t]his prima facie showing . . . may be rebutted by evidence of the disparate conditions and hazards 

associated with these violations,” and “[a]lthough the principle factor in assessing repeat liability 

is whether the two violations resulted in substantially similar hazards, this assessment may also 

take into consideration other factors that bear on the similarity of the two violations.” Angelica 

Textile Servs., Inc., 27 BNA OSHC 1246, 1255 (No. 08-1774, 2018) (emphasis in original) 

(citations omitted), appeal docketed, No. 18-2831 (2d Cir. Sept. 21, 2018).

In Angelica, a Commission majority concluded that the Secretary’s prima facie showing 

was rebutted by evidence demonstrating that the cited violations were minor compared with the 

prior ones. Specifically, the majority found that the prior violations involved deficiencies in the 

employer’s confined space and lockout/tagout procedures “that were significant enough to render 

[them] substantially ineffective,” while “the Secretary established only minimal deficiencies” with 

regard to the cited violations, “reflecting that after those prior violations, Angelica took affirmative 

steps to achieve compliance and avoid similar violations in the future.” Id. at 1256, 1257. In short, 

given that the cited provisions were “performance-oriented, which means that employers have 

flexibility in meeting their requirements,” the Commission held that Angelica’s efforts and 

resulting substantial compliance rendered the cited violations “stark[ly] differen[t]” from the prior 

ones. Id. at 1258.

I dissented on the characterization issue in Angelica in part because the majority’s focus 

on compliance efforts between the prior and instant violations injected into the repeat analysis “an 

element of good faith or state of mind [that] blurs the statutory distinction between a willful and 

repeated violation.” Id. at 1262 (Attwood, Comm’r, concurring and dissenting in part). I reiterate 

my view here that Angelica was wrongly decided in this regard. In any event, Angelica is 

distinguishable from the present case. Wynnewood LLC frames its rebuttal argument in the 

context of the successor liability issue and claims that “upon Wynnewood’s acquisition by CVR 

Energy in 2011, safety, health, and PSM protections greatly improved.” In my view, this general 

assertion regarding Wynnewood LLC’s “overall safety culture” falls short of proving that it made 

the type of specific improvements, relevant to the specific standards that were cited, that the 
5

Commission deemed sufficient to rebut the Secretary’s prima facie showing in Angelica. Even 

the improvements the majority cites here in the context of its successorship analysis—additional 

refinery safety personnel, equipment upgrades, more formalized training programs, and a 

“renewed emphasis” at the facility on management of change—are vague generalizations that are 

not specific to the particular standards cited.

Wynnewood LLC further argues that the prior citations addressed equipment and processes 

clearly covered by the PSM standard, which the company views as distinct from the Wickes boiler. 

While it is true that the prior citations addressed different equipment than that at issue here, the 

Commission has declined to “distinguish between various subcategories of . . . equipment on the 

basis of its function and location” in affirming a repeat characterization—“[t]hat the equipment 

which was the subject of the present citation is of a different type than that previously cited is of 

little moment.” Potlatch Corp., 7 BNA OSHC at 1065; see also Willamette Iron & Steel Co., 9 

BNA OSHC 1128, 1131 (No. 15317, 1980) (finding substantial similarity where “the same 

hazard—a tripping hazard—is the subject of both violations,” despite the fact that “the present 

violation also includes additional materials in the clutter” that caused the hazard); FMC Corp., 7 

BNA OSHC at 1421 (finding “that a difference in the location of violations at the same worksite 

is not a relevant consideration” in deciding whether the violations are substantially similar).

Finally, Wynnewood LLC argues that the hazards at issue in the prior citations were 

different from the hazard posed by the Wickes boiler in this case, such that the violations are not 

substantially similar. More specifically, the company asserts that the prior citations addressed 

equipment and vessels involving HHCs and/or flammables above threshold quantities, and so the 

hazards there included toxic fire and explosions, self-contained hazardous vapor clouds, and 

employee exposure to toxic chemicals. Wynnewood LLC contends that the Wickes boiler does 

not handle any HHCs or flammables in a threshold quantity, so the only potential hazards here are 

struck-by/crushing hazards as a result of a boiler explosion. A closer look at the prior and instant 

violations, however, shows the following substantial similarities:

▪ Docket No. 13-0791, Citation 2, Item 2, alleges a violation of 

§ 1910.119(f)(1)(ii),1based on Wynnewood LLC’s failure to “ensure the 

written operating procedures addressed the operating limits of the process such 

 

1 This provision requires “written operating procedures that provide clear instructions for safely 

conducting activities involved in each covered process consistent with the process safety 

information and shall address . . . operating limits.” 29 C.F.R. § 1910.119(f)(1)(ii).
6

as . . . Minimum/Maximum gas pressure to the boiler burner gas train [and] 

Minimum and maximum pressure . . . at the fuel gas inlet to the Wickes,” which 

“exposed [employees] to fire and explosion hazards from potential releases of 

fuel gas and other flammable liquids or gases.” The prior violation also related 

to operating procedures that address excessive pressure posing an explosion 

hazard; it was based on a failure to “develop and implement a high limit for the 

Depropanizer Accumulator pressure,” given that the “operations manual for the 

unit stated the high limit was not applicable.”

▪ Docket No. 13-0791, Citation 2, Item 3, alleges a violation of 

§ 1910.119(g)(2),2based on Wynnewood LLC’s failure to “ensure refresher 

training was provided . . . to each employee involved in operating the Wickes.” 

The prior violation also involved a lack of refresher training for operators, 

specifically a failure to “ensure that refresher training [was] provided to process 

operators.”

▪ Docket No. 13-0791, Citation 2, Item 4, alleges a violation of § 1910.119(j)(2),3

based on Wynnewood LLC’s failure to “ensure that written procedures were 

established and implemented for the testing and inspection of the Low 

Combustion Air Flow Fuel Gas Shut-Off system safeguard.” The prior 

violation also dealt with written procedures for a shutdown system; it was based 

on a failure to “develop written procedures to maintain the ongoing integrity of 

controls, pumps, and emergency shutdown systems in the HF Alkylation Unit.”

▪ Docket No. 13-0791, Citation 2, Item 5, alleges a violation of § 1910.119(l)(1),4

based on Wynnewood LLC’s failure to “ensure management of change 

procedures were implemented [for] . . . [t]he amount of time the firebox is 

purged prior to attempting to light the pilot[,] . . . [t]he amount that the gas 

control valve bypass valve is to be opened[,] . . . [and] the addition of temporary 

power to operate the Wickes.” The prior violation also related to the 

implementation of management of change procedures; it was based on the 

company’s failure to “follow its own written procedures for management of 

change regarding changes to procedures, piping and drains in the [alkylation] 

unit.”

 

2 This provision states that “[r]efresher training shall be provided at least every three years, and 

more often if necessary, to each employee involved in operating a process to assure that the 

employee understands and adheres to the current operating procedures of the process.” 29 C.F.R. 

§ 1910.119(g)(2).

3 This provision states that “[t]he employer shall establish and implement written procedures to 

maintain the on-going integrity of process equipment.” 29 C.F.R. § 1910.119(j)(2).

4 This provision states that “[t]he employer shall establish and implement written procedures to 

manage changes (except for ‘replacements in kind’) to process chemicals, technology, equipment, 

and procedures; and, changes to facilities that affect a covered process.” 29 C.F.R. 

§ 1910.119(l)(1).
7

▪ Docket No. 13-0644, Citation 2, Item 1, alleges a violation of 

§ 1910.119(h)(2)(iv),5based on Wynnewood LLC’s failure to “develop and 

implement safe work practices . . . to control the entrance, presence and exit of 

contract employers and employees . . . [in] the FCCU [and] . . . Alkylation 

Unit.” Specifically, the Secretary asserted in his post-hearing brief that while 

“WRC developed a sign[-]in sign[-]out process,” there were “numerous signout logs where employees failed to sign out of various areas,” and the signin/sign-out “rule was not being consistently enforced.” The prior violation also 

related to keeping track of onsite contractor employees who were present in the 

same areas of WRC’s facility; it was based on a failure to “ensure that 

individual contractor employees are accounted for . . . in the event of an 

emergency . . . at the FCC and Alkylation Units.”

In short, each of these items addresses the same type of condition involved in the prior violation, 

and the hazards addressed in the prior citations were, generally, fire and explosion risks caused by 

a failure to comply with the same PSM standards cited here. More to the point, there is no support 

in the record for the company’s contention that the only potential hazards associated with the 

Wickes boiler were struck-by and crushing hazards, particularly in light of testimony from the 

company’s own expert acknowledging that there was a fire risk associated with the boiler. 

Accordingly, I would find that Wynnewood LLC has failed to rebut the Secretary’s prima facie 

case of substantial similarity, and I would characterize the violations noted above as repeat.6

/s/

Dated: March 28, 2019 Cynthia L. Attwood

Commissioner

 

5 This provision states that “[t]he employer shall develop and implement safe work practices 

consistent with paragraph (f)(4) of this section, to control the entrance, presence and exit of 

contract employers and contract employees in covered process areas.” 29 C.F.R. 

§ 1910.119(h)(2)(iv).

6

I agree with my colleagues’ rejection of Wynnewood LLC’s argument that a repeat 

characterization is inappropriate here because OSHA failed to comply with its internal citation 

policy in relying on prior violations that were more than five years old. As the majority aptly 

notes, “there are no statutory limitations upon the length of time that a citation may serve as the 

basis for a repeated violation.” Hackensack Steel Corp., 20 BNA OSHC 1387, 1392 (No. 97-0755, 

2003).
UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 DOCKET NOS. 13-0644

 13-0791

Appearances:

Joshua Bernstein, Esq., Mia Terrell, Esq., Office of the Solicitor, U.S. Dept. of Labor, Dallas, Texas

For Complainant

Nicole Smith, Esq., Nicholas Hankey, Esq., DLA Piper LLP (US), Washington, D.C.

Lee M. Smithyman, Esq., Smithyman & Zakoura, Overland Park, Kansas

Edmund S. Gross, Esq., CVR Energy, Inc., Kansas City, Kansas

For Respondent

Before: Administrative Law Judge Brian A. Duncan

DECISION AND ORDER

I. Procedural History

This matter is before the United States Occupational Safety and Health Review 

Commission (“Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act 

of 1970, 29 U.S.C. § 651 et seq. (“the Act”). On September 28, 2012, a boiler exploded during a 

turnaround at the Wynnewood Refinery in Wynnewood, Oklahoma, killing two employees. In 

response, the Occupational Safety and Health Administration (“OSHA”) initiated an inspection of 

the Wynnewood Refinery on September 29, 2012. (Tr. 1379; Ex. R-1). On October 29, 2012, 

Complainant initiated a second, simultaneous inspection of the worksite in response to complaints 

SECRETARY OF LABOR, 

 

 Complainant,

 

 v. 

WYNNEWOOD REFINING CO., LLC

and its successors, 

 

 Respondent.
2

about the conditions in the refinery warehouse. (Tr. 1381; Ex. R-19). As a result of the

inspections, OSHA issued two separate Citations and Notifications of Penalty (“Citations”) to 

Respondent. (Ex. R-1, R-2). The Citation for Inspection No. 663538 alleges one other-thanserious, eleven serious, and five repeat violations of the Act, with a total proposed penalty of 

$234,500.00. The Citation for Inspection No. 778042 alleges one repeat, one other-than-serious, 

and eleven serious violations of the Act, with a total proposed penalty of $46,600.00.

1 Both 

Citations were issued on March 27, 2013. (Ex. R-1, R-2). Respondent timely contested the 

Citations. A trial was conducted in Oklahoma City, Oklahoma beginning on September 16–23, 

2014 and concluding February 10–12, 2015. The parties each submitted post-trial briefs for 

consideration. 

Twenty-one witnesses testified at trial: (1) John Koesler, operator for Respondent; (2) 

Greg Kellerhall, operator for Respondent; (3) Jeff Sutton, console technician (“CT”) for 

Respondent; (4) James Willson, former CT for Respondent; (5) Wesley Walker, CT for 

Respondent; (6) Justin Sutton, operator for Respondent; (7) Kyle McCurtain, shift supervisor for 

Respondent; (8) Mitch Underwood, unit supervisor for Respondent; (9) Troy Stephenson, unit 

supervisor for Respondent; (10) Paul Howard, DCS technician for Respondent; (11) James 

Johnstone, Complainant’s expert; (12) Casey Perkins, Assistant Director for OSHA’s Austin, 

Texas Area Office; (13) Richard Hartung, Compliance Safety and Health Officer (“CSHO”); (14) 

David Armstrong, warehouse technician for Respondent; (15) Marcus Rambo, CSHO; (16) Dick 

Jackson, Process Safety Management (“PSM”) Manager for Respondent; (17) Darin Rains, current 

VP/GM of Respondent’s Coffeyville refinery and former operations manager at Wynnewood; (18) 

 

1. Inspection No. 663538 was assigned Docket No. 13-0791. Inspection No. 778042 was assigned Docket No. 13-

0644. For ease of reference, however, the Court shall refer to the inspections as the PSM Inspection and the Warehouse 

Inspection, respectively. 
3

Janet Barker, current Voluntary Protection Plan coordinator and former Assistant Area Director 

for Complainant; (19) James Stanley, Respondent’s expert; (20) Steve Arendt, Respondent’s 

expert; and (21) David Johnson, former safety specialist for Respondent. 

II. Jurisdiction

The parties stipulated that the Commission has jurisdiction over this proceeding pursuant 

to Section 10(c) of the Act. (Tr. 51). The parties also stipulated that, at all times relevant to this 

proceeding, Respondent was an employer engaged in a business and industry affecting interstate 

commerce within the meaning of Sections 3(3) and 3(5) of the Act, 29 U.S.C. § 652(5). (Tr. 51). 

See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005). 

III. Factual Background

This section constitutes an overview of the operations of the Wynnewood refinery; its 

history of ownership; the events that occurred on September 28, 2012; and the subsequent 

inspections. To the extent that certain findings of fact are not included in this Section III, any 

additional factual findings necessary to find (or not find) that a violation has been established will 

be found in Section IV.C.

A. The Wynnewood Refinery

The Wynnewood refinery is a 70,000 barrel-per-day (bpd) crude oil refinery, which 

produces gasoline, propane, propylene, butane, fuel oils, and solvents. (Tr. 802–803; Ex. C-5, C16). The refinery is broken into separate zones, each of which performs a different function in the 

refining process. The citation items in Docket No. 13-0791 (Inspection No. 663538) focus on Zone 

2. Zone 2 contains the Alkylation Unit, the Fluid Catalytic Cracking Unit (FCCU), and the Wickes 

boiler, which caused the explosion and prompted the inspections leading to this litigation. (Tr. 92–
4

93). The citation items in Docket No. 13-0644 (Inspection No. 778042) focus on alleged violations 

in the warehouse, as well as general safety items identified throughout the refinery. 

The refinery is owned and operated by Wynnewood Refining Co., LLC, which, at the time 

of the 2012 explosion, was a subsidiary of CVR Energy, Inc. (CVR). (Tr. 1700). CVR acquired 

Wynnewood from a subsidiary of The Gary-Williams Energy Company, Inc. (GWE) in a stock 

purchase in December 2011. (Tr. 1700). According to the evidence, there was no prior connection 

or affiliation between CVR and GWE. (Tr. 1701). They are completely separate, unrelated 

companies. 

B. History of Wynnewood’s Ownership

i. Gary-Williams Energy

During Complainant’s presentation of the evidence, the Court heard from a number of 

employees and supervisors that worked at the Wynnewood refinery prior to and after its purchase 

by CVR. The more notable examples include: (1) Dick Jackson, who served as the refinery’s PSM 

manager starting in 2010; (2) Troy Stephenson, who became a roving shift supervisor in 2006 and 

was promoted to Zone 2 supervisor in 2012, after the purchase;

2

(3) Mitch Underwood, who served 

as the Alky Unit supervisor before and after the purchase, and (4) Darin Rains, who served as 

operations manager prior to and after the purchase, and is now the Vice President and General 

Manager of the Coffeyville refinery, which is also owned by CVR. (Tr. 571, 618, 1578, 1699–

1700). With a few exceptions, such as Rains and Jackson, all of the individuals that testified 

worked in a particular unit of the refinery. 

During GWE’s tenure as the owner of Wynnewood, the refinery was inspected and cited 

for violations of the Process Safety Management (PSM) standard, which, as is relevant to this case, 

 

2. Paul Howard was his predecessor. (Tr. 684). According to Stephenson, Howard continued to serve in an advisory 

capacity once Stephenson took over. (Tr. 672). 
5

form the basis of the repeat violations alleged by Complainant. Those violations, as well as prior 

boiler explosions, including incidents involving the specific boiler at issue in this case, will be 

discussed in further detail in the succeeding sections of this Decision. See Section III.C, infra. 

In 2006, there was a fire in the refinery’s alkylation unit (Alky Unit), which prompted an 

inspection and the issuance of citations by Complainant. (Ex. C-27). In that case, Respondent 

conceded that the equipment involved in the Alky Unit fire “involve[d] the use of HHCs [highly 

hazardous chemicals] and/or flammables in amounts that [met] the threshold quantity for PSM 

coverage . . . .” Resp’t Br. at 5. The parties executed a partial settlement agreement, which became 

a final order of the Commission around April of 2007.3(Tr. C-28 at 11–12 n.1). 

Around the same time that the partial settlement agreement became a final order of the 

Commission, Respondent’s employees were attempting to manually light the H-4 boiler, which is 

located in the refinery’s boiler house. (Ex. R-46 at 1–2). During the lighting process, there was an 

explosion in the H-4 boiler, which injured two employees. (Id.). The explosion prompted another

OSHA inspection, which resulted in the issuance of two citation items, each alleging violations of 

the general duty clause. (Ex. R-45). Respondent points out that, notwithstanding the similarity 

between the explosion in April 2007 and the explosion of the boiler in this case, Complainant did 

not issue citations pursuant to the PSM standard in 2007. The matter was settled when Complainant 

agreed to withdraw one of the citation items. (Ex. R-47). 

Shortly after the H-4 boiler explosion, Complainant initiated an inspection pursuant to the 

National Emphasis Program on PSM. (Tr. 2004–2006). The focus of this particular inspection 

was the Fluid Catalytic Cracking Unit (“FCCU”), which introduces catalysts into crude oil to 

 

3. The remaining citation, which addressed a flare line running from the Alky Unit, was affirmed by Administrative 

Law Judge Covette Rooney as a final order of the Commission on September 8, 2008. (Ex. C-28). 
6

“strip” the product and create high octane fuels.4(Tr. 256–57). The inspection lasted until March 

24, 2008, at which time Complainant issued multiple citation items, alleging violations of the PSM 

standard. (Ex. C-25). The parties executed a settlement agreement on September 15, 2008, which 

became a final order of the Commission on November 10, 2008. (Ex. C-26). Respondent points 

out that, notwithstanding the H-4 boiler explosion just months before, there was no apparent 

attempt to inspect the boilers pursuant to the PSM standard. (Tr. 2010–2012)

ii. CVR Energy (Respondent)

As noted above, CVR purchased Wynnewood from GWE in December of 2011. 

According to Darin Rains, this was done via stock purchase. (Tr. 1700). In contrast with the 

relatively scant evidence regarding GWE’s involvement at Wynnewood, Rains testified that the 

refinery “went through some pretty drastic changes as a result of the purchase by CVR Energy.”

(Tr. 1701). 

Some examples of the changes noted by Rains include access to previously unavailable 

capital, an increase in the number of safety and supervisory operations personnel, and the regular 

presence of CVR corporate management. (Tr. 1701–1703). The increase in capital led to 

improvements in equipment—CVR spent roughly $130 million on improvements to the refinery 

in the Fall 2012 Turnaround. (Tr. 1706; Ex. C-16). Rains noted, though, that the most significant 

changes were in the personnel arena. (Tr. 1701). Once CVR purchased the refinery, Wynnewood 

“substantially increased the number of people working at the facility”, including two new safety 

technicians and four assistant operations supervisors, whose primary role was to focus on 

procedure development, training, management of change (MOC) compliance, and other issues 

touching on PSM and occupational safety. (Tr. 1702). In addition to changes at the ground level, 

 

4. As will be discussed later in this Decision, the Wickes boiler, which is the subject of many of the citations at issue 

in this case, was a part of, or at least directly adjacent to, the FCCU. (Ex. C-7, C-11).
7

Rains also testified that members of CVR’s corporate management, including the executive vice 

president for operations, Robert Haugen, and the vice president for safety, health, and 

environment, Chris Swanberg, made regular visits to the refinery. (Tr. 1703). There is no evidence 

to suggest that similarly situated GWE corporate managers were so involved.

This perception of wholesale change to the organization and management of Wynnewood 

was shared by a number of Respondent’s employees and managers. For example, Stephenson 

noted, “[P]rior to CVR buying us, things were not as formal . . . . We did our best but since CVR 

has taken over, we’ve formalized everything and the expectations are a lot higher in regards to 

safety, MOCs, procedures. Things are a lot more strict and a lot more disciplined.” (Tr. 674–75). 

These sentiments were echoed by Paul Howard and Dick Jackson, who stated, “The new company 

has raised the level of the safety programs since they’ve taken over, and their involvement in the 

safety program included process safety.” (Tr. 749, 1612). 

C. The Wickes Boiler

The explosion that killed two employees on September 28, 2012, originated at the Wickes 

boiler, which is part of the FCCU located in Zone 2. (Tr. 92–93; Ex. C-7, C-11). The Wickes, as 

described by many of Respondent’s employees, “was by far the workhorse of the plant for steam.”

(Tr. 360). It is one of four boilers that provide steam to the 225-pound steam header, which, in 

turn, routes steam for use in various processes throughout the plant. (Tr. 2057–58; Ex. C-8 to C13). Some of those processes include providing emergency steam to the riser, which clears it of 

HHCs; injecting steam into the FCCU process to drive high-end products out of the crude oil, also 

known as steam-stripping; purging low-lying gases in the firebox of the Alky Unit heater during 

start-up; powering turbines to pump product; and serving as a back-up to the electric pumps. (Tr. 

162–63, 236–37). 
8

The Wickes itself is fueled by two separate fuel streams within the refinery—the refinery 

fuel gas (RFG) system and a natural gas fuel line. (Tr. 134–40; Ex. C-10). The RFG system, which 

is the primary source of fuel for the Wickes, is a fuel recycling system of sorts. Various processes 

throughout the plant, such as the FCCU, refine crude oil to a saleable product. As a result of these 

processes, a certain amount of non-condensable flammable gas remains. (Tr. 138). Though this 

gas cannot be converted into a saleable product, the refinery still uses it to fuel various processes 

throughout the plant. (Tr. 139). These “off-gases” that are produced throughout the plant are 

directed via pipeline to a fuel drum, where the refinery fuel gas is treated. (Tr. 1602–1603). The 

resulting gas mixture is then piped out of the drum into a 4.1-mile pipeline network that leads to 

different processes throughout the refinery, including the Wickes. (Tr. 1710–11). Such is the 

process for normal operations; however, in some instances, such as during a turnaround, the 

Wickes can be powered by natural gas alone. (Tr. 134–35). 

In order to start the Wickes boiler, Respondent had to go through a fairly detailed process, 

which involved no fewer than three employees. (Tr. 98). The first step requires the CT to purge 

HHCs from the boiler’s firebox for 30 minutes by blowing air into it. (Tr. 111, 421; Ex. C-34). 

Once the firebox has been adequately purged, the pilot light has to be lit. (Tr. 335). After the pilot 

is lit, an operator is directed to open the fuel gas bypass valve, which introduces the RFG mixture 

into the firebox. (Tr. 335). Each operator that testified gave a slightly different description as to 

how this part of the process is carried out. Koesler, for example, stated that he was told to turn the 

bypass valve “one-quarter of a spoke” and to leave it open for 5–10 seconds, though he admitted 

there was not a set amount of time to keep the valve open. (Tr. 113, 116–17). McCurtain testified 

that he was trained to open the valve “slightly” or “just a little bit” and to close the valve if he did 

not achieve ignition “quickly” or “shortly”. (Tr. 518, 528). During this process, another operator 
9

positions himself at the sight glass, which allows him to determine whether there has been a 

successful ignition.5 Once ignition is achieved, control over fuel management is handed over to 

the CT in the control room. (Tr. 335). 

With the exception of a shutdown because of a turnaround or annual boiler inspection by 

the State of Oklahoma, the Wickes was operated constantly. (Tr. 376). As such, there were limited 

opportunities for operators and CTs to light the boiler.6(Tr. 376). According to McCurtain,

however, it was “not uncommon” for operators to experience a “hard start” when attempting to 

light the Wickes. (Tr. 516). A hard start is best characterized as a mini-explosion occurring within 

the firebox, typically a result of allowing too much fuel into the system. (Tr. 102–103). Koesler 

stated that, instead of lighting smooth, a hard start causes the boiler to “woof” or “huff” as a result 

of a sudden pressure increase within the firebox. (Tr. 104). In some cases, this merely caused the 

boiler to spew dust and smoke; in others, the structure of the boiler actually bowed outward as a 

result of the explosion. (Tr. 106–107, 213; Ex. C-31). In one instance, Willson, who was manning 

the sight glass, was actually struck by the boiler, which had bowed outward during a hard start. 

(Tr. 357–58; Ex. C-31). 

D. The Turnaround

On September 28, 2012, Respondent was in the middle of a refinery turnaround.7(Tr. 108–

109). During the turnaround, the refinery was shut down and was not refining petroleum. Instead, 

Respondent hired multiple subcontractors to come to the refinery to repair, replace, or maintain 

various pieces of equipment throughout the refinery. (Tr. 1704–1706). According to David 

 

5. The Wickes boiler does not have a burner management system (BMS), which allows for remote ignition of the 

burner. (Tr. 100). 

6. According to James Willson, who had worked at the refinery for seven years at the time of the accident said he had 

only lit the boiler 4 to 5 times during that period. (Tr. 376). 

7. A turnaround is a period of time when the refinery shuts down temporarily to allow for improvement and 

maintenance projects. (Tr. 1704).
10

Johnson, there could be as many as 1500 contractors working on a shift, which drastically 

increased the number of people present at the refinery. (Tr. 2104). 

In order to facilitate repairs and maintenance, Respondent needed to produce steam to

purge HHCs from various lines and equipment. (Tr. 369). This required starting up the Wickes

boiler. Because the refinery was off-line and not producing fuel products, Respondent had to use 

natural gas to light the Wickes. (Tr. 346). According to Willson, the Wickes had been taken offline earlier that day to make a switch of the electrical supply circuits. (Tr. 347). Due to power 

supply problems, the crew implemented a temporary solution by running an extension cord to a 

small generator, which powered the controls and interlocks of the Wickes. (Tr. 347). According 

to Jeff Sutton, the previous CT reported that the temporary power supply was causing the vanes, 

which control air flow, to malfunction. (Tr. 278–79). Eventually the problem was fixed, and Sutton 

began to increase the airflow to purge the Wickes firebox of any remaining HHCs. (Tr. 279). 

At the conclusion of the purge, which lasted about five minutes, Sutton reduced the airflow 

to 15,000 cubic feet per minute (cfm) to light the pilot. (Tr. 281). While Sutton was working in 

the control room, Lead Operators Koesler and Willson; “A” Operators Russell Mann, Billy Smith, 

and Justin Sutton; and “B” Operator Steve Graves were located at or around the boiler. (Ex. R-110 

at 4). Lead Operators Koesler and Willson were located at the northwest corner of the Wickes and 

were overseeing the lighting attempt. (Tr. 98). Mann was positioned at the fuel bypass valve, and 

Smith was positioned at the sight glass to verify ignition. (Ex. R-110 at 4). Justin Sutton and 

Graves did not have specific responsibilities related to the lighting process.

After the firebox had been purged, Mann opened the fuel gas bypass valve to introduce 

natural gas into the firebox. (Tr. 112). At some point in the process, Koesler instructed Mann to 

close the valve because they had not achieved ignition. (Tr. 126). Mann did not comply with this 
11

instruction. (Tr. 191). When Koesler confronted him, Mann informed Koesler that he was taking 

instructions from Willson, who was standing nearby. (Tr. 191). After a brief interaction between 

Willson and Koesler, Koesler moved to the north side of the boiler to check water levels. (Tr. 125). 

Willson continued to oversee Mann, who kept the bypass valve open. 

As fuel was being introduced into the firebox, the other CT in the control room, Wesley 

Walker, looked at Sutton’s console and noticed that the firebox was flooded with too much natural 

gas. (Tr. 401–402). Walker immediately radioed the operators to inform them that they should 

close the bypass valve. (Tr. 402). Shortly after Mann closed the valve, the boiler exploded. Smith, 

who was manning the sight glass, was pronounced dead at the scene, and Mann, who was critically 

injured in the explosion, died twenty-eight days later. (R-110). 

Subsequent investigations by Respondent revealed shrapnel in the area surrounding the 

Wickes, and a ladder, which was attached to the west end of the boiler, that had been blown 

completely across the street. Additionally, investigators found that the valve was opened 

approximately one-and-a-half spokes and that fuel had been flowing into the firebox for 

approximately 5 minutes. (Ex. R-110 at 8). Many of the operators and CTs involved in the lighting 

were disciplined, and one of the Lead Operators, Willson, was discharged. (Tr. 95, 369; Ex. C-89). 

IV. 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. § 
12

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. The Court also 

finds, however, that Complainant failed to show the requisite nexus between Wynnewood under 

the ownership of GWE and Wynnewood under the ownership of CVR such that liability for repeat 

violations survived the transfer of ownership.

A. PSM Coverage

i. The Standard – 29 C.F.R. § 1910.119 
13

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.8Id. § 1910.119(a)(1)(ii). 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:

 

8. For all other chemicals, one must refer to Appendix A of 29 C.F.R. § 1910.119.
14

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 
15

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”. 

Motiva, 21 BNA OSHC 1696. 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.” Id. at *4.
16

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. (Ex. C-3 at 1524). 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. (Id.). Due to this 

change, OSHA noted that “the limitation placed on 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.’” (Id.). 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.” 

(Id.). 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. (Id.). 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 
17

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.” Unarco Comm. 

Prods., 16 BNA OSHC 1499 (No. 89-1555, 1993). 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 
18

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. See Simpson, Gumpertz & Heger, Inc., 15 BNA OSHC 

1851 (No. 89-1300, 1992) (“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.”) (citing General Elec. Co. v. Gilbert, 429 U.S. 125, 142 (1976) (quoting 

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))). 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. See Martin v. 

OSHRC (CF&I Steel), 499 U.S. 144, 145–46 (1991) (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. (Tr. 655, 911). It is undisputed that the Alky 

and the FCCU are PSM-covered processes by virtue of the quantity of flammables contained in 
19

each.9(Ex. C-5). Second, the Wickes is connected to virtually all of the refinery’s processes 

through the 225-lb. steam header. (Ex. C-7). 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. 

Resp’t Br. at 29 (internal citations omitted). 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).

10

 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. Delek, 25 BNA OSHC 1365 at 

 

9. According to the RMP that Respondent submitted to the EPA, the Alky Unit stores and/or processes 100,000 

pounds of flammable liquid; the FCCU stores and/or processes 50,000 pounds. (Ex. C-5). 

10. Delek is currently on review to the Fifth Circuit Court of Appeals. Nonetheless, it still serves as precedent for the 

Court in this case. 
20

*6. 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].”

Delek, 25 BNA OSHC 1365 at *7. 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.
21

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. (Tr. 857, 918). 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,

11 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.

12 (Tr. 293, 402). 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.

13 (Tr. 

1598; R-124). 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. 

 

11. 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. (Tr. 2095).

12. 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. 

(Ex. C-4 at 1530). 

13. 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.
22

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 
23

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 

 

14. Complainant addressed a similar situation to the one presented here through a letter of interpretation. (Ex. C-4 at 

1542). In that letter, Complainant was asked whether the use of coke oven and blast furnace gases—which are 

generated as a by-product during steel industry processes—as fuel for other steel mill processes would be covered by 

the PSM standard. (Id.). In response, Complainant stated that the workplace fuels exception would apply insofar as 

the by-product gases are not used in a process involving another highly hazardous chemical covered by the standard. 

(Id.). Although it discussed the potential coverage of a by-product recovery plant, the interpretation did not clarify 

the extent to which a particular fuel use is considered to be “part of a process involving another highly hazardous 

chemical covered by the standard.”
24

catalyst in certain reactions, driving high-end products from crude oil, also known as steamstripping; (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. (Tr. 162–63, 236, 239, 1716–17; Ex. C-8). 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.” Resp’t Br. 

at 31 (citing Ex. R-84). 

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].’” Delek, 25 BNA OSHC 1365 at *7. 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 
25

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.

Id. at *8–9. Here, Respondent cites the same letter, in addition to another interpretive document,

for the essentially the same proposition. (Ex. R-83, R-84). 

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 . . . .” (Ex. R-84). 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.” Resp’t Br. at 30. 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.” Delek, 25 BNA OSHC 1365 at *9. 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. (Ex. R-83). In other words, the determination must be reasonable. See, e.g., Siemens 

Energy & Automation, Inc., 20 BNA OSHC 2196 at *1 (No. 00-1052, 2005) (performance standard 

give a “certain degree” of discretion but meaning of standard interpreted in light of what is 

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 
26

catastrophic release. Specifically, Respondent points to the testimony of Jackson, 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. (Tr. 1606–1610). 

Jackson and Rains 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. (Tr. 

1671–72, 1718–1725). Respondent’s expert testified similarly. (Tr. 2066–2067). 

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. (Tr. 1719–1720). 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 Jackson 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. (Tr. 1606–1607). In response to a question regarding whether he was 

confident that he considered a loss of steam in all PHAs for covered processes, Jackson 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.” (Tr. 1607; Ex. R-93, R-94). 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 
27

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, Raines 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. (Tr. 1719). 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. (Tr. 1764). Further, Respondent’s employees testified that the Wickes was the workhorse of 

and a main contributor to the plant’s steam system. (Tr. 171, 242–43). 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. (Tr. 238, 360, 1037, 1761, 1765). 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. See Delek, 25 BNA OSHC 

1365 at *8 (citing favorably to OSHA Interpretation Letter stating “proper safe functioning of all 

aspects of a process, whether they contain [HHC] or not, are important for the prevention and 

mitigation of catastrophic releases”). 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 
28

release of HHCs. As testified to by Rains, certain process upsets, if left alone for a long enough, 

can cause a catastrophic release. (Tr. 1761). 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. Delek, 25 BNA 

OSHC 1365 at *8. 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
29

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. (Tr. 667). 

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. (Tr. 152, 156–57, 364, 367; Ex. C-62 at 3, 4, R-110 at 19–20). 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. (Tr. 204–206; Ex. C62 at 15). 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. (Tr. 830; Ex. C11). 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, 
30

therefore, should not be considered a single process with any adjacent PSM-covered processes, 

such as the FCCU. See id. 

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. (Tr. 1726).

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. (Tr. 152, 156–57, 364, 367; Ex. C-62 at 3, 

4). Arendt estimated the distance from the boiler to the shelter was about 40 feet. (Tr. 2071). In 

addition to the ladder and platform, the photographs also show a significant amount of refractory15

that had been blasted across the street at the operator shelter. (Tr. 149; Ex. C-62 at 1–4). Had the 

 

15. Refractory is a brick-like lining that is used inside of the Wickes to protect the piping from flame impingement. 

(Tr. 149). 
31

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 
32

covered process would not be affected is misguided and disregards the concrete connection that 

exists between the Wickes and the FCCU, for example.

16

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.”

25 BNA OSHC 1365 at *9. 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 PSMcovered process is even more attenuated than the control room itself, was governed by the PSM 

standards. Id. at *8 (“The PPU’s regulation of the control room’s positive-pressure atmosphere 

makes the PPU integral to that “control”—and thus a “control” itself—because, as discussed 

 

16. The Court also finds that the fact that the blast caused a ladder and platform to fly across a street and into an 

adjacent operator building (which houses the CTs) suggests that smaller pieces of shrapnel could fly much farther 

and, as a result, could impact covered aspects of the FCCU. However, as discussed further below, there is an even 

stronger basis upon which to find PSM coverage based on co-location.
33

above, entry of hazardous hydrocarbon vapors into the room could prevent the control room from 

managing the refining process.”). 

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].” Id. at *7. 

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. (Tr. 1610–

1611; Ex. R-94). 

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.
34

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. (Exs. C-8 to C-13, C18, C-19, C-31, R-110 at 162). Jackson 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 Wynnewood’s opinion as to PSM 

coverage. Further, Respondent claims that Jackson determined the Wickes was not PSM-covered 

when the PHA revalidation for the Wickes was performed. (Tr. 1616).

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. (Ex. C-4 at 

1535) (“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 
35

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, Jackson 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”. (Tr. 1620–21). 

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 Jackson 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. (Tr. 1606–1607). 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. 

B. Repeat Violations and Successor Liability17

As a result of the 2012 inspection, Respondent was cited for five repeat violations, which 

were issued on March 27, 2013. (Ex. R-1). The citations upon which the repeat violations were 

based were issued to Wynnewood Refining while owned and operated by Gary Williams Energy 

 

17. For the purpose of making the distinction clear, and for this section only, the Court will refer to the two entities 

involved in the purchase of Wynnewood as GWE-WR and CVR-WR. As a reminder, CVR-WR is the Respondent in 

this case.
36

(GWE), most of which became final orders of the Commission in April of 2007.18 (Ex. R-1, C-28 

at 11–12, n.1). Respondent contends that the present citations are not properly characterized as 

repeated on three separate bases. First, Respondent contends that Complainant failed to comply 

with its own internal policies regarding the issuance of repeat citations because more than five 

years had elapsed since the underlying citations were issued. Second, Respondent contends that it 

should not be held liable for repeat violations that are premised on violations committed by the 

previous owner of Wynnewood Refinery. Third, Respondent contends that the current citations, 

and the citations which form the basis of the repeat characterization, are not substantially similar. 

Based on what follows, the Court finds that Respondent is not a successor to GWE and that the 

citations at issue were improperly characterized as repeated.19

Prior to analyzing the question of successor liability, the Court would like to briefly address 

Respondent’s argument that Complainant violated its own citation policy by issuing the repeat 

citations more than five years after the underlying citations were issued. According to 

Complainant’s Field Operations Manual, a citation will be issued as a repeated violation if “[t]he 

citation is issued within five years of the final order date of the previous citation or within five 

years of the final abatement date, whichever is later . . . .” OSHA, Field Operations Manual, 

available at https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-159.pdf.

Four out of the five citations were nearly (but not quite) six years old by the time the 

current, repeat citations were issued. Respondent contends that, although there is no statutory 

restriction on the “look-back” period for repeat violations, Complainant’s attempt to expand the 

 

18. Four out of the five underlying violations, which were part of OSHA Inspection No. 309785459, became final 

orders in April of 2007, after a partial settlement. (Ex. C-28). The remaining violation, which was part of OSHA 

Inspection No. 311001234, became a final order on November 10, 2008. (Ex. C-26).

19. This section deals primarily with the question of whether Respondent is a successor-in-interest to GWE. Because 

the Court finds that Respondent is not properly characterized as a successor, it will not address the substantive 

argument of whether the present and underlying citations are substantially similar. 
37

applicable look-back period beyond its stated policy creates an “unworkable framework” wherein 

citations that were decades old could serve as the basis for a repeat citation. 

According to the Commission, “A violation is properly classified as repeated under section 

17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final 

order against the same employer for a substantially similar violation.” Hackensack Steel Corp., 20 

BNA OSHC 1387 (No. 97-0755, 2003) (citing Jersey Steel Erectors, 16 BNA OSHC 1162, 1167–

68 (No. 90-1307, 1993), aff'd without published opinion, 19 F.3d 643 (3rd Cir. 1994)). “[T]he 

‘time between violations does not bear on whether a violation is repeated.” Id. (citing Jersey Steel, 

16 BNA OSHC at 1168). 

Just as Respondent argues here, the employer in Hackensack argued that the then-current 

version of the Field Operations Manual (the Field Inspection Reference Manual) limited repeat 

citations to a period of three years after the issuance of the original citation. Id. Citing to previous 

decisions, the Commission noted that the FOM and the FIRM “are only [] guide[s] for OSHA 

personnel to promote efficiency and uniformity, are not binding on OSHA or the Commission, and 

do not create any substantive rights for employers.” Id. (citations omitted). Accordingly, the 

Commission upheld the repeat characterization. 

The Court finds that the enforcement policy of Complainant does not preclude the issuance 

of a repeat citation after more than five years. As noted by the Commission in Hackensack, such 

a policy is only a guide and does not confer rights upon employers. While Respondent’s concern 

regarding an ever-expanding look-back period is legitimate, the citations in this case all occurred 

within a six-year period, only slightly longer than the stated policy of Complainant. Because this 

Court is bound to follow the precedent set by the Commission, the Court rejects Respondent’s 

argument to vacate the repeat characterization on this basis. 
38

Respondent’s second argument, however, is far more persuasive. The citations that form 

the basis of the repeat violations in this case were issued to GWE, which owned the Wynnewood 

Refinery until it was purchased by CVR Energy, Inc. in 2011. (Tr. 1760). Respondent contends 

that it should not be held liable for repeat violations that are premised on violations committed by 

the previous owner of Wynnewood Refinery. Complainant argues that Respondent should be 

characterized as a successor-in-interest to GWE and therefore liable as a repeat offender under the 

Act. 

The Commission addressed the issue of successor liability, albeit in a slightly different

context, in Sharon & Walter Constr., Inc., 23 BNA OSHC 1286 (No. 00-1402, 2010). In that case, 

OSHA cited Sharon & Walter Construction, Inc. (“S&W II”) for repeat violations of the 

construction fall protection standards. The underlying citations were issued to Walter Jensen d/b/a 

S&W Construction (“S&W I”). S&W I filed for bankruptcy and ceased operations approximately 

six weeks prior to the formation of S&W II. Walter Jensen was the sole proprietor of S&W I, as 

well as the president, director, and solitary shareholder of S&W II. Both companies were based 

in New Hampshire, and both “provided essentially the same construction services . . . .” Id. 

The starting point of the Commission’s analysis is the language of Section 17(a) of the Act, 

which states, “Any employer who . . . repeatedly violates . . . the Act . . . may be assessed a civil 

penalty of not more than $70,000 for each violation.” 29 U.S.C. § 666(a). Applying a plain 

meaning analysis to the statute, the Commission found that there is “no language in the statute that 

would compel restricting attribution of an employer’s violation history to the identical legal entity, 

nor do we find anything that would preclude attribution of a predecessor’s citation history to a 

successor.” Sharon & Walter, 23 BNA OSHC 1286 at *7. In other words, the statute is ambiguous 

in this context.
39

The Commission resolved the ambiguity by looking at the purpose of Section 17(a) in the 

context of the Act as a whole. Id. at 8 (citing Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 

88, 99–100 (1992)). The Supreme Court has held that the Act “is to be liberally construed to 

effectuate the congressional purpose”, Whirlpool Corp. v. Marshall, 445 U.S. 1, 10–11 (1990), 

which is to “assure so far as possible every working man and woman in the Nation safe and 

healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b). Thus, to 

carry out this purpose, the “enforcement framework creates a deterrent to an employer that might 

otherwise ignore potential hazards . . . and an enhanced deterrent against subsequent infractions 

‘once alerted by a citation and final order.’” Sharon & Walter, 23 BNA OSHC 1286 at *8 (quoting 

Dun-Par Eng’d Form Co. v. Marshall, 676 F.2d 1333, 1337 (10th Cir. 1982)). 

Given its determination that the threat of a repeat characterization is designed as a deterrent 

to future bad behavior, the Commission held that “section 17(a) is most reasonably read to permit, 

in appropriate circumstances, the Secretary’s application of a “repeat” characterization to cases 

where the employer has altered its legal identity from that of the predecessor employer whose 

citation history forms the basis of that characterization.” Id. at *8 (emphasis added). This reading 

stems from the Commission’s concern that an overly restrictive application of Section 17(a) “could 

‘creat[e] an economic incentive to avoid a penalty by going out of business and, perhaps, then 

reincorporating under a different name.’” Id. (quoting Joel Yandell, 18 BNA OSHC 1623, 1625 

(No. 94-3080, 1999) (internal citations omitted)). To the extent that such a possibility could 

undermine the purpose of the repeat characterization under 17(a), the Commission found it 

appropriate to “allow attribution of a predecessor’s citation history to a successor in appropriate 

circumstances.” Id.

At the urging of the Secretary, and after its own review of relevant case law, the 
40

Commission determined that the substantial continuity test used by the National Labor Relations 

Board and the courts “promotes the Act’s goals of ensuring workplace health and safety by 

preserving the deterrent effect of a repeat characterization, and is appropriately adapted to a 

determination of the requisite nexus between a successor and predecessor’s violation history for 

purposes of ascribing a repeat characterization under the OSH Act.” Id. at *9; see also Nat’l Labor 

Relations Bd. v. Burns, 406 U.S. 272, 280–81 (1972). The Commission found that “this test 

enables us to fully assess the nature and extent of the distinctions and similarities between a 

successor and a predecessor based on criteria that are well-suited to the OSH Act and the facts of 

each case before us.” Id. (citing Howard Johnson Co. Inc. v. Detroit Local Jt. Bd., Hotel and Rest.

Employees, 417 U.S. 249, 263, n.9 (1974) (noting successorship cases require an analysis based 

on “the facts of each case and the particular legal obligation which is at issue”)). In particular, the 

Commission noted that the substantial continuity test focuses on factors that fall into three primary 

categories: (1) nature of the business, (2) jobs and working conditions, and (3) personnel. 

Applying the foregoing test to the facts of Sharon & Walter, the Commission found that 

S&W II was a successor to S&W I. The nature of the business—roofing and general 

construction—did not change. In particular, the Commission noted that both entities served 

customers in the same geographic area, and occupied the same office space and use the same 

telephone number. Further, a check drawn on an account belonging to S&W I was used to pay a 

debt of S&W II, and S&W II continued performance on a contract entered into by S&W I. Id. at 

*10. Because the employing entity and the nature of the business remained “essentially 

unchanged”, the jobs and working conditions also remained the same—both companies provided 

the same general construction services, which required the same tools and exposed employees to 

the same hazards. Id. 
41

As to the third category—personnel—the Commission noted that “continuity of personnel

who specifically control decisions related to safety and health is certainly relevant in the context 

of the Act because the decisions of such personnel relate directly to the extent to which the 

employer complies with the statute’s requirements.” Id. (emphasis added). In that regard, finding 

that S&W II was a successor to S&W I was a fairly perfunctory exercise. As noted above, Walter 

Jensen was the sole proprietor of S&W I, and the president, sole shareholder, and supervisor of 

S&W II. Accordingly, “Jensen’s control over decision-making in both companies, including that 

related to employee safety and health, weighs heavily in favor of attributing S&W I’s citation 

history to S&W II.” Id. Notably, however, the Commission placed little to no weight on the 

continuity of nonsupervisory employees, “because those employees are not responsible for OSH 

Act compliance and would not have supervised its implementation.” Id.

In this case, there is no real dispute as to the first two categories of factors.20 It is clear that 

the Wynnewood refinery is still in the business of refining oil, produces similar products, and 

services similar customers. (Tr. 1735–56; Ex. C-16). Likewise, as testified to by many of 

Respondent’s employees, the jobs and working conditions have remained essentially unchanged 

since Respondent’s purchase of the refinery from GWE. (Tr. 142). Thus, the remaining factor to 

consider is the continuity of personnel who control the decisions related to safety and health. The 

Court finds that this factor, more than the others, is particularly relevant to the issue of whether a 

successor should be held liable for the acts of its predecessor.21

 

20. Respondent contends that Complainant failed to establish continuity in operations and working conditions due to 

the implementation of more formal policies and procedures after the acquisition. These changes are more germane to 

the issue of continuity in personnel responsible for decision-making. While the implementation of more formal 

policies and procedures, especially in the arena of safety and health, may have an impact on the manner in which a 

job is carried out, the basic nature of the job and the conditions of the refinery did not change. 

21. This sentiment was expressed by the Commission in Sharon & Walter, when it held that an individual’s common 

control over decision-making in both companies “weighs heavily” in favor of finding successor liability. Sharon & 

Walter, 23 BNA OSHC 1286 at *10. 
42

In 2007, when the original, underlying citations were issued, GWE was the owner of the 

Wynnewood Refinery. Nearly all of Respondent’s current and former employees testified that, 

upon Wynnewood’s acquisition by Respondent in December 2011, the new company placed 

significant emphasis on improving safety and health and proper implementation of PSM. (Tr. 234, 

674–75, 749, 1612). This included changes to policies, procedures, and the overall culture of 

safety at Wynnewood Refinery. Some of the other changes noted by Respondent included: (1) 

nearly doubling the number of safety personnel at the refinery, including four new assistant 

operations supervisors, who were responsible for procedure development, compliance, PSM, and 

occupational safety; (2) new, high-level executives, including the Executive Vice President for 

Operations and the Vice President of Environmental Health and Safety, were more involved in the 

day-to-day operations, and were present on a frequent basis to oversee the transition from GWE; 

(3) a $130 million upgrade to equipment; and (4) more formalized training programs and a renewed 

emphasis on “management of change” (MOC) procedures. (Tr. 1701–1703).

In support of its argument that there was continuity of personnel sufficient to find successor 

liability, Complainant points to the following: (1) Dick Jackson, Respondent’s current PSM 

Manager, and Darren Rains, Respondent’s former operations manager,22 were members of 

management before and after the acquisition; and (2) key personnel and managers, such as Koesler, 

Howard, Underwood, and Walker, who were present at the time of the underlying violations were 

still working in Zone 2 at the time of the accident. Although these individuals were responsible 

for implementing safety and health policies, and may have had input into them, there was no 

indication that these individuals were ultimately responsible for making the decision to change 

safety and health procedures, PSM policies, and organizational culture. See Sharon & Walter, 23 

 

22. Mr. Rains is now the Vice President and General Manager of Respondent’s Coffeyville refinery. 
43

BNA OSHC 1286 at *10 (focusing “continuity of personnel” analysis on “who specifically 

controls decisions related to safety and health”). 

According to Darin Rains, however, there were significant changes in the management of 

Wynnewood. (Tr. 1703). Specifically, Rains noted that GWE management was less involved in 

day-to-day operations, whereas CVR’s corporate management, inclusive of its Vice President of 

Safety, Health, and Environment, Chris Swanberg, and Executive Vice President of Operations, 

Robert Haugen, were actively involved in daily operations. This, in and of itself, is a strong fact 

in favor of Respondent—new corporate management responsible for ultimate decision-making in 

the areas of operations and safety and health. It should also be noted that neither of these men, nor 

any of the other CVR managers, worked for GWE. 

In Sharon & Walter, the Commission was concerned with applying section 17(a) in an 

overly restrictive manner such that companies could evade higher penalties by merely changing 

form, but it is equally problematic to be over-inclusive. Respondent notes that successor liability 

has not previously been imposed under circumstances such as these. In Sharon & Walter, the 

Commission was careful to note that successor liability for repeat violations should only be applied 

in “appropriate circumstances” and proceeded to do so based on a unique set of facts. The primary 

concern was manipulation—the Commission repeatedly discussed the possibility that an employer 

could avoid liability by “changing its legal identity for each new project” or “by going out of 

business and . . . reincorporating under a different name.” Sharon & Walter, 23 BNA OSHC 1286 

at *8. When viewed through that lens, the scope of the Commission’s interpretation of section 

17(a) becomes clearer: repeat violations based on successor liability would be appropriate when 

the cited employer “altered its legal identity from that of the predecessor employer . . . .” Id. 

(emphasis added). In other words, the Commission sought to prevent manipulation of the system, 
44

not to expand liability. 

The purpose of a repeat violation is to deter an employer from committing violations by 

drastically increasing the penalty for subsequent, substantially similar violations. Dun-Par, 676 

F.2d at 1337. This implies that the employer was responsible for the underlying violation. While 

higher penalties are a deterrent, irrespective of the basis therefor, there must be some justification 

for increasing the penalties in the first instance. Respondent did not commit the underlying 

violations in this case. Drastically increasing the penalty for a violation that occurred on someone 

else’s watch does not deter future misconduct because there was no past misconduct to deter. 

Complainant seeks to circumvent this problem by arguing that CVR-WR was on notice of 

the underlying violations when it acquired Wynnewood from GWE-WR and is therefore 

responsible for any obligations stemming from them. Without citing case law, Complainant 

attempts to analogize economic obligations acquired in the purchase of a business and OSHA 

citations that were incurred by the former owner, stating:

If the new employer has notice of the obligation, then the price paid for the business 

will reflect that knowledge and it is fair to impose the obligation on the new 

employer. In the OSHA context, notice shows culpability on the part of the new 

employer and supports imposition of a higher repeat penalty because the new 

employer had notice of the violative condition but failed to prevent its occurrence.” 

Compl’t Br. at 28. First, a prior OSHA citation, which has become a final order of the 

Commission, is not an outstanding obligation. Second, notice does not, on its own, equal 

culpability as argued by Complainant. 

The importance of notice can be seen in the distinction between a willful violation and a 

repeat violation. A willful violation is punishment for what an employer knew before it committed 

a violation. See, e.g., Sharon & Walter, 23 BNA OSHC 1286 at *5 (citing Kaspar Wire Works, 

Inc., 18 BNA OSHC 2178, 2181 (No. 90-2775, 2000) (“The hallmark of a willful violation is the 

employer’s state of mind at the time of the violation-an ‘intentional, knowing, or voluntary 
45

disregard for the requirements of the Act or ... plain indifference to employee safety.’”) (citations 

omitted)). A repeat violation is punishment for what an employer did (or did not do) in the past. 

See Dun-Par Eng’d Form Co. v. Marshall, 676 F.2d 1333, 1337 (10th Cir. 1982) (“Once an 

employer has been cited for an infraction under a standard, this tends to apprise the employer of 

the requirements of the standard and to alert him that special attention may be required to prevent 

future violations of the standard.”). Thus, in the context of successor liability, the Court must be 

mindful of who we are holding responsible and what we are holding them responsible for. 

The threat of increased penalties for subsequent violations only makes sense if the same

employer was responsible for the underlying past violation. In the case of Sharon & Walter, 

though the “employer” was different in name, the controlling entity (Walter Jensen) did not 

change. What Complainant proposes—holding CVR-WR, a separate and distinct purchasing 

entity, responsible for what GWE-WR did in the past—expands repeat liability beyond what the 

Commission envisioned when it decided Sharon & Walter. Based on the facts and law discussed 

above, the Court holds that the citations issued to Respondent were improperly characterized as 

repeat. 

C. The PSM Inspection – Docket No. 13-0791 – Inspection No. 663538

i. Applicable Law

To prove a violation of an OSHA standard, Complainant must prove, by a preponderance 

of the evidence, that: (1) the cited standard applied to the facts; (2) the employer failed to comply 

with the terms of the cited standard; (3) employees were exposed or had access to the hazard 

covered by the standard, and (4) the employer had actual or constructive knowledge of the violative 

condition (i.e., the employer knew, or with the exercise of reasonable diligence could have known). 

Atlantic Battery Co., 16 BNA OSHC 2131 (No. 90-1747, 1994).
46

A violation is “serious” if there was a substantial probability that death or serious physical 

harm could have resulted from the violative condition. 29 U.S.C. § 666(k). Complainant need not 

show that there was a substantial probability that an accident would actually occur; he need only 

show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. 

OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984). If the possible injury addressed by a regulation is 

death or serious physical harm, a violation of the regulation is serious. Mosser Construction, 23 

BNA OSHC 1044 (No. 08-0631, 2010); Dec-Tam Corp., 15 BNA OSHC 2072 (No. 88-0523, 

1993).

ii. Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:

29 CFR 1910.119(d)(3)(i)(F): Process safety information pertaining to the 

equipment did not include the design codes and standards employed:

The employer does not ensure process safety information pertaining to the 

equipment includes design codes and standards employed. In the Zone2/CAT 

Wickes Boiler Area the employer does not ensure process safety information 

pertaining to the equipment included the design codes and standards employed such 

as the National Fire Protection Association (NFPA) Standard 85, Boiler and 

Combustion Systems Hazard Code, and ASME CSD-1, sections CF-210 & CF-330, 

and ASME Section VI for the Wickes boiler burner and gas train exposing 

employees to fire and explosion hazards from potential releases of fuel gas and 

other flammable liquids or gases.

The cited standard provides:

Information pertaining to the equipment in the process. (i) Information pertaining 

to the equipment in the process shall include . . . [d]esign codes and standards 

employed . . . . 

29 C.F.R. § 1910.119(d)(3)(i)(F).

Complainant alleges that Respondent failed to include design codes and standards in the 

process safety information (PSI) for the Wickes boiler and the associated gas train. In particular, 

Complainant notes that it requested such information during the inspection and that none was 
47

provided. Further, Howard, the former Zone 2 Supervisor, stated that he did not know what design 

codes and standards were employed with respect to the Wickes and gas train. (Tr. 703). 

Respondent contends that Complainant failed to establish that the design codes cited were 

applicable to the Wickes and gas train, noting NFPA 85 has a retroactivity provision that excludes 

equipment “that existed or were approved for construction or installation prior to the effective date 

of the code.” (Ex. R-130 at 85-11). Respondent also notes the boiler passed inspection by the 

Oklahoma Department of Labor and was approved for operation one month prior to the explosion. 

As repeatedly noted by Respondent, and echoed by Complainant’s expert, Johnstone, this 

is a performance standard. (Tr. 873, 1117). As such, Respondent is entitled to elect which design 

codes and standards they wish to employ with respect to a particular piece of equipment. (Id.). 

Nevertheless, Respondent must still make a choice as to which standards or codes to apply. Herein 

lies the problem. Regardless of whether design codes and standards identified by Complainant in 

this citation item are specifically applicable to the Wickes and its gas train, Respondent failed to 

identify any design codes or standards in their PSI. (Tr. 703, 874, 1118). Further, according to 

Johnstone, Respondent’s P&IDs for the Wickes did not comply with any known design code or 

standard. (Tr. 874–75). Although the Wickes may have passed inspection with the State of 

Oklahoma—which may or may not have indicated compliance with certain applicable design 

codes or standards—this does not excuse Respondent from its obligations to document that 

information under the cited standard. Accordingly, the Court finds that Respondent violated the 

terms of the standard.

The Court also finds that Respondent knew or could have known of the violative condition. 

For example, in 2007 the refinery conducted an investigation of an explosion at the H-4 boiler. 

(Ex. C-32). That boiler, similar to the Wickes, was designed and installed prior to the purported 
48

grandfathering date of NFPA 85. (Ex. C-32 at 4). Nonetheless, the investigation report noted that 

consideration should be given to the requirements of NFPA 85 with respect to the operation 

sequence of the H-4 boiler. (Id. at 13). This incident highlighted the importance of applying 

consensus design codes and standards to a PSM-covered process and should have placed 

Respondent on notice that such information would be equally applicable to the other boilers in its 

facility. 

Further, the H-4 incident illustrated the impact of failing to utilize and apply such 

information to PSM-covered processes; namely, that without having proper PSI, employees are 

exposed to explosion and fire hazards. (Tr. 876). According to CSHO Hartung, “When you define 

the design code and standard, that sets forth the standard to which all engineering, design, 

installation and use and maintenance of that equipment will be conducted as it’s in the process, as 

it’s installed, again as it’s engineered and maintained.” (Tr. 1119). The purpose of the cited 

standard is to “enable the employer and the employees involved in operating the process to identify 

and understand the hazards posed by those processes involving highly hazardous chemicals.” 29 

C.F.R. § 1910.119(d). If no standard or code is defined, there is no basis upon which to determine 

whether a particular aspect of the process “is appropriate for the operation and that it meets 

appropriate standards and codes . . . .” 57 Fed. Reg. at 6374. Without such a basis, the ability to 

identify and understand the hazards of a process is reduced, thereby exposing employees to 

potential injury from explosion or fire.23 As indicated by the incident in this case, as well as the 

incidents pre-dating the Wickes explosion, exposure to fire and explosion hazards can cause 

serious injury and/or death. 

 

23. The Court also finds the Oklahoma State boiler inspection is not sufficient to establish Respondent’s compliance 

with its obligation to compile PSI. As Johnstone testified, the state inspection report did not indicate whether the 

design complied with any specific applicable requirements. (Tr. 1016).
49

Based on the foregoing, the Court finds that Respondent violated the standard and that the 

violation was serious. Accordingly, Citation 1, Item 1 is AFFIRMED as a serious violation of the 

Act.

iii. Citation 1, Items 2(a), (b), and (c)

Complainant alleged three serious violations of the Act in Citation 1, Item 2, subparts (a), 

(b), and (c). Given their similarity, all three items will be addressed together. Complainant’s 

allegations with respect to Item 2(a) are as follows: 

29 CFR 1910.119(e)(3)(i): The process hazard analysis did not address the hazards 

of the process: 

The employer does not ensure the process hazard analysis addresses the hazards of 

the process. In the Zone2/CAT Wickes Boiler Area the employer did not ensure 

the 1992 and 2008 Process Hazard Analyses addressed the hazards of the process 

where employees were exposed to fire and explosion hazards from potential 

releases of fuel gas and other flammable liquids or gasses for hazards of the process 

such as but not limited to:

a) Failure to purge or adequately purge the boiler firebox prior to lighting the 

burner pilot.

b) Loss of burner pilot during the initial start-up of the boiler burner.

c) Loss of burner flame.

d) High or prolonged fuel gas flow to the burner without a pilot or flame present.

e) Failure of the burner to light.

The cited standard provides that “[t]he process hazard analysis shall address . . . [t]he hazards of 

the process. 29 C.F.R. § 1910.119(e)(3)(i).

Complainant’s allegations regarding Item 2(b) are as follows:

29 CFR 1910.119(e)(3)(iii): The process hazard analysis did not address the 

engineering and administrative controls applicable to the hazards and their 

interrelationship, such as, appropriate detection methodologies to provide early 

warning of releases: 

The employer does not ensure the process hazard analysis addresses the engineering 

and administrative controls applicable to the hazards and their interrelationship, 

such as, appropriate detection methodologies to provide early warning of releases. 

In the Zone2/CAT Wickes Boiler Area the employer did not ensure the 1992 and 

2008 Process Hazard Analyses addressed the engineering and administrative 

controls applicable to the hazards and their interrelationships such as the 
50

appropriate methodologies to provide early warning where employees were 

exposed to fire and explosion hazards from potential releases of fuel gas and other 

flammable liquids or gasses for occurrences such as but not limited to: 

a) Failure to purge or adequately purge the boiler firebox prior to lighting the 

burner pilot.

b) Loss of burner pilot during the initial start-up of the boiler burner.

c) Loss of burner flame.

d) High or prolonged fuel gas flow to the burner without a pilot or flame present.

e) Failure of the burner to light.

The cited standard provides:

The process hazard analysis shall address . . . [e]ngineering and administrative 

controls applicable to the hazards and their interrelationships such as appropriate 

methodologies to provide early warning of releases. (Acceptable detection methods 

might include process monitoring and control instrumentation with alarms and 

detection hardware such as hydrocarbon sensors.)

29 C.F.R. § 1910.119(e)(3)(iii).

Complainant’s allegations regarding Item 2(c) are as follows:

29 CFR 1910.119(e)(3)(iv): The process hazard analysis did not address the 

consequences of failure of engineering and administrative controls:

The employer does not ensure the process hazard analysis addresses the 

consequences of failure of engineering and administrative controls. In the 

Zone2/CAT Wickes Boiler Area the employer did not ensure the 1992 and 2008 

Process Hazard Analyses addressed the consequences of failure of engineering and 

administrative controls where employees were exposed to fire and explosion 

hazards from potential releases of fuel gas and other flammable liquids or gasses 

for occurrences such as but not limited to: 

a) Failure to purge or adequately purge the boiler firebox prior to lighting the 

burner pilot.

b) Loss of burner pilot during the initial start-up of the boiler burner.

c) Loss of burner flame.

d) High or prolonged fuel gas flow to the burner without a pilot or flame present.

e) Failure of the burner to light.

The cited standard provides that “[t]he process hazard analysis shall address . . . [c]onsequences 

of failure of engineering and administrative controls . . . .” 29 C.F.R. § 1910.119(e)(3)(iv).

Respondent’s primary argument with respect to the foregoing citation is that the PSM 

standard does not apply, which the Court disposed of earlier in Section IV.A, supra. Its secondary 
51

argument is that, insofar as the Wickes is subject to PSM because of its connection to other covered 

processes, Complainant was required to prove that the PHAs for the Alky and the FCCU failed to 

contain the information alleged to be missing from the Wickes PHA. Resp’t Br. at 53. This 

argument is undercut by the fact that Respondent performed a PHA on the Wickes on two separate 

occasions—initially in 1992 and a revalidation in 2008.24 Insofar as it performed PHAs on the 

Wickes, Respondent effectively treated it as a part of a process subject to the PSM standard. 

A review of the disputed PHAs reveal that neither contains an analysis of the hazards 

identified in the foregoing citation items. (Ex. C-18, C-19). Paul Howard, who participated in both 

the initial analysis and subsequent revalidation, testified that both PHAs should have identified 

hazards, the controls, and consequences of failure, but failed to do so. (Tr. 720–23). The Court 

agrees and finds that the terms of the standard were violated. 

The Court also finds that Respondent knew or could have known of the hazard. The PHAs, 

which were performed under the ownership of GWE-WR, were available to Respondent and its 

employees, and the 2008 PHA was effective for a period of five years. See 29 C.F.R. § 

1910.119(e)(6). Respondent could have known, with the exercise of reasonable diligence, that the 

PHA for the Wickes was deficient. These deficiencies, especially as they relate to the accident 

that occurred in this case, clearly exposed Respondent’s employees to fire and explosion hazards 

that were otherwise left unexplained and un-analyzed in the Wickes PHA. Without a complete 

understanding of the hazards associated with a process, the impact of administrative and 

engineering controls, and the consequences of failure of those controls, employees were exposed 

to hazards that were potentially unknown and, if known, may not have been properly addressed 

 

24. These PHAs occurred when the refinery was owned by Gary Williams Energy. 
52

with effective engineering and administrative controls. As noted above, fire and explosion hazards 

can lead to serious physical injuries, including (as happened in this case) death.

The Court finds that Complainant established a serious violation of the standards cited 

above. Accordingly, Citation 1, Items 2(a), (b), and (c) are AFFIRMED as serious violations of 

the Act.

iv. Citation 1, Items 3(a) and (b)

Complainant alleged two serious violations of the Act in Citation 1, Item 3, subparts (a) 

and (b). Given their similarity, both items will be addressed together. Complainant’s allegations 

with respect to Item 3(a) are as follows:

29 CFR 1910.119(f)(1)(i)(A): The employer’s written operating procedures 

covering the steps for each operating phase did not address initial startup.

The employer’s written operating procedures covering the steps for each operating 

phase do not address initial startup. In the Zone 2/CAT Wickes Boiler Area the 

employer did not ensure the written operating procedures covered steps for each 

operating phase including initial startup such as but not limited to: 

a) The length of time in which the gas can flow to the boiler burner without the 

burner lighting.

b) A description of how much the main gas valve can be opened or what the 

maximum pressure should/can be at the inlet to the burner. 

c) The length of time the firebox is to be purged of gas prior to or after a failed 

burner lighting attempt. 

d) The maximum gas pressure at the inlet to the gas train on the boiler burner.

e) The use of natural/purchased gas versus refinery gas.

Employees were exposed to fire and explosion hazards from potential releases of 

fuel gas and other flammable liquids or gasses.

The cited standard states, “The employer shall develop and implement written operating 

procedures that provide clear instructions for safely conducting activities involved in each covered 

process consistent with the process safety information and shall address at least the following 

elements: . . . Initial Startup.” 29 C.F.R. § 1910.119(f)(1)(i)(A).

Complainant’s allegations with respect to Item 3(b) are as follows:
53

29 CFR 1910.119(f)(3): The operating procedures were not reviewed as often as 

necessary to assure that they reflect current operating practice, including changes 

that result from changes in process, chemicals, technology, and equipment, or 

changes to facilities: 

The employer does not ensure operating procedures are reviewed as often as 

necessary to assure that they reflect current operating practice, including changes 

that result from changes in process chemicals, technology, and equipment, or 

changes to facilities. In the Zone 2/CAT Wickes Boiler Area the employer did not 

ensure written operating procedures were reviewed as often as necessary to assure 

that they reflected current operating practice. Identified errors include but not 

limited to: 

a) The amount of time the firebox is purged prior to attempting to light the pilot 

or after a failed burner lighting attempt.

b) The level the gas control valve bypass is to be opened.

c) The time the gas control valve bypass valve is allowed to open before the burner 

lights. 

Employees were exposed to fire and explosion hazards from potential releases of 

fuel gas and other flammable liquids or gasses. 

The cited standard states, “The operating procedures shall be reviewed as often as necessary to 

assure that they reflect current operating practice, including changes that result from changes in 

process chemicals, technology, and equipment, and changes to facilities. The employer shall 

certify annually that these operating procedures are current and accurate.” 29 C.F.R. § 

1910.119(f)(3).

In response to Complainant’s allegations, Respondent contends that: (1) it was not feasible 

to provide precise instructions on how far or how long to open the gas bypass valve because the 

fuel composition changes from hour to hour; (2) the instructions provided to operators during 

formal and on-the-job training were consistent (e.g., “no more than a spoke”, “no longer than a 

minute”) and that the operators failed to comply; and (3) the remaining deficiencies identified by 

Complainant are irrelevant to the boiler startup. 

As to providing precise instructions regarding the bypass valve, the Court disagrees that 

doing so would be infeasible. According to Respondent’s Formal Incident Report, an earlier 
54

iteration of the standard operating procedures (SOP) for lighting the Wickes included fairly precise 

instructions for opening the bypass valve, whereas the most recent version did not.25 (Ex. C-30 at 

13). Notwithstanding its obligation under a 2008 settlement agreement to update its SOPs, 

Respondent failed to include all of the earlier startup steps in its revised SOP. (Id. at 7). Thus, 

Respondent’s own investigation revealed as a root cause of the explosion that the “SOP Did Not 

Include Critical Safety Information from Earlier Startup Procedures”. (Id.). In addition, any claim 

that providing precise instructions was infeasible is belied by the same report, wherein the 

investigation team “was able to identify other similar equipment SOPs in Zone 2 that had more 

specific instructions on how long a lighting procedure was to be performed until aborting a task, 

and contained specific hazard warnings about the consequence of not aborting the task if light-off 

failed in a short time period.” (Ex. C-30 at 8). Further, the fact that Respondent’s employees may 

have received training consistent with the earlier procedure does not obviate the need to include 

such steps in the updated, written procedures. In fact, the effect of Respondent’s failure to do so 

is reflected in the testimony of the witnesses, each of whom gave a slightly different description 

of how much to open the valve and for how long. (Tr. 116–17, 215, 335, 353, 453, 518). 

Accordingly, the Court rejects Respondent’s argument as to infeasibility of including more precise 

instructions on the bypass valve and finds a violation on this basis. 

As to the remaining deficiencies, first, it is not clear that the gas pressure at the bypass 

valve is irrelevant as Respondent suggests. Merely because the pressure valve is not in an 

operator’s line of sight does not render that indicator unimportant. According to Respondent’s 

 

25. Specifically, the previous SOPs indicated that the valve should be opened slowly, 1/16 of an inch at a time, and 

no more than one spoke. (Ex. C-30 at Exhibit 42). It also indicated that fuel gas was not to exceed 1,000 MCSFD and 

that if ignition was not achieved to close the valve and restart the lighting sequence. (Id.). The “current” SOPs only 

instruct an operator to “LIGHT main burner by slowly opening 3-[inch] bypass valve around 20FC702 until burner 

lights.” (Id. at Exhibit 44).
55

Incident Report, “Normal operation data indicated that a 3–5 psig burner pressure is in the range 

to support normal operation of the boiler . . . . This data also shows that the burner pressure should 

have been between 1.4 to 1.8 psig.” (Ex. C-30 at 12). The Report indicates that “high burner 

pressure resulted in a fuel velocity that far exceeded the condition necessary to light the burner.” 

(Id.). To the extent that data available to Respondent revealed a connection between fuel pressure 

and the ability to light the burner, Respondent should not be absolved of including that information 

as a step in the lighting process merely because the operator turning the bypass valve does not have 

pressure information in his line of sight. 

Second, the Court agrees with Respondent that the SOPs for the Wickes indicate that the 

firebox should be purged for 30 minutes prior to lighting the pilot and that such would be the case 

for starting the boiler regardless of whether it is the initial lighting attempt or an attempt to light 

the boiler after a failed attempt. (Ex. C-30 at Exhibit 44). However, the problem with the 

procedures in place at the time of the explosion was that they did not account for a failed lighting 

attempt at any step in the process.26 (Id.). Thus, there was no indication, in the SOPs at least, as 

to what the next step in the process would be if the lighting attempt failed. 

Third, Respondent’s argument that the process would be the same irrespective of whether 

the Wickes was being lit by natural gas or refinery fuel gas is equally unavailing. Respondent 

contends that there are only slight differences between the flame speed and flammable range of 

natural and refinery fuel gas and that such differences were not significant enough to affect the 

boiler’s startup procedures. Further, Respondent contends that due to the variability of the 

hydrogen content of RFG, it is infeasible for Respondent to create different SOPs for every 

potential iteration of fuel gas. According to Respondent’s Incident Report:

 

26. By comparison, the previous iteration of the SOP indicated when a lighting attempt should be aborted and what 

steps should be taken in the event of a failed lighting attempt. (Ex. C-30 at Exhibit 43). 
56

Differences in the flame speed and flammable range of natural gas versus hydrogen 

coupled with the high velocity of fuel and air flowing through the burner ring would 

prevent the fuel/air mixture from being lit by the pilot. Natural gas has a flammable 

range of 5% to 15% and a flame speed of approximately 1.0 feet/sec. Hydrogen has 

a flammable range of 4% to 75% and a flame speed of approximately 10 feet/sec. 

The velocity of the fuel moving through the burner tip along with the air flow is 

crucial to enable the fuel/air mixture to ignite with a stable flame at the burner tip. 

The lower flame speed of natural gas and the higher than normal velocity of both 

the fuel and air prevented the mixture from contacting the pilot flame . . . .

(Ex. C-30 at 5). While it may be infeasible to account for every iteration of fuel gas that comes 

through the RFG pipeline, the Court finds that is not the case for pure natural gas. According to 

the testimony of Respondent’s employees, the Wickes runs on natural gas alone only during 

turnaround activities, during which time the processes which feed the RFG pipeline are offline. 

(Tr. 553–54). Given the investigative team’s finding that the lower flame speed of the natural gas 

contributed to the failed lighting, and in consideration of the fact that lighting the Wickes with 

natural gas is a unique and seldom-used process, the Court finds that Respondent’s SOPs should 

account for it to avoid accidents such as the one that occurred in this instance. 

In addition to the foregoing, which addresses 1910.119(f)(1), the Court also finds that 

Respondent failed to review the SOPs as often as necessary to assure they reflect current operating 

practice. See 29 C.F.R. § 1910.119(f)(3). According to Underwood and Stephenson, both unit 

supervisors for Respondent, the purpose of the review of SOPs is to make sure they are accurate 

and address the hazards employees are exposed to, set forth applicable operating limits, 

consequences of deviation, and steps to correct deviations. (Tr. 576, 651–52). Underwood stated 

that he personally reviewed and approved numerous versions of the SOP for lighting the Wickes 

prior to the explosion and admitted that the steps discussed above should have been included in 

the SOPs that he reviewed and approved. (Tr. 580–82, 679–80). This not only establishes 

Respondent’s failure to comply with 1910.119(f)(3) but also illustrates that Respondent knew or, 

with the exercise of reasonable diligence, could have known of the deficiencies in its SOPs.
57

The Court also finds that Respondent’s failure to have clear, complete, and up-to-date 

procedures exposed its employees to fire and explosion hazards and that such exposure had the 

potential to cause serious injury and/or death. (Tr. 1144). Accordingly, Complainant established 

its prima facie case. 

Respondent contends that the foregoing failures were not the product of insufficient 

procedures, but were instead the result of unpreventable employee misconduct. In particular, 

Respondent notes that operators disregarded their training and opened the valve too far 

(approximately a spoke-and-a-half) and for too long (approximately 5 minutes). (Ex. R-110 at 9). 

Respondent also notes that Willson, the senior operator supervising the lighting process, instructed 

Mr. Mann, who was operating the bypass valve, to keep the valve open even though he was 

instructed to close it by Koesler.

In order to prevail on the affirmative defense of unpreventable employee misconduct, 

Respondent must prove that: (1) it has established work rules designed to prevent the violation, (2) 

it has adequately communicated those rules to its employees, (3) it has taken steps to discover 

violations, and (4) it has effectively enforced the rules when violations have been discovered. W.G. 

Yates & Sons, 459 F.3d 604, 609 (5th Cir. 2006). First, as noted above, Respondent did not have 

established rules designed to prevent the violation—there was no specification in the SOP as to 

how long the valve should remain open or how much it should be opened. This, in and of itself, is 

sufficient to reject Respondent’s defense. See Stuttgart Machine Works, Inc., 9 BNA OSHC 1366 

(No. 77-3021, 1981) (“Respondent’s inability to unambiguously state the content of its rule casts 

serious doubt on whether Respondent effectively communicated any rule to its employees.”). 

Without specific outer limits on the process, there is no sense in which an employee can be said to 

comply. One of the witnesses testified that the procedure for lighting was like a dance, of sorts. 
58

(Tr. 353). Second, and relatedly, Respondent’s own Incident Report indicated that, though the 

operators seemed to generally understand how to safely light the Wickes, the knowledge 

demonstration tests revealed “that there were no specific questions regarding the lighting the 

burner of the Wickes boiler as part of the test.” (Ex. C-30 at 13). This indicates a failure to 

adequately communicate the rules to employees and is exemplified by the different 

characterizations each employee gave regarding how much to open the valve and for how long. 

While the Incident Report findings indicate that the valve was open far too wide for far too 

long, this was not the sole root cause identified nor, in light of the deficient procedures identified 

above, was it the product of unpreventable employee misconduct. (Ex. C-30). Lighting the 

Wickes, as illustrated by the history of accidents associated with it, clearly requires attention to 

detail, whether that is being cognizant of what fraction of a spoke one is supposed to turn the 

bypass valve or tracking the amount of fuel flowing into the firebox. Tracking those all-tooimportant details is made all the more difficult by the fact that it is done infrequently—according 

to most witnesses, maybe once per year for the annual boiler inspection. Given that set of 

circumstances, it was incumbent upon Respondent to ensure, as the law requires, a set of 

procedures that accounted for hazards that Respondent knew existed. That the accident itself may 

have been caused, in part, by the misguided actions of an employee does not absolve Respondent 

of liability for having insufficient procedures. See Western Waterproofing Co., Inc., 7 BNA OSHC 

1625 (No. 1087, 1979) (“[A]s a general rule, whether an employer is in violation of the Act does 

not depend on the cause of a particular accident.”); Propellex Corp., 18 BNA OSHC 1677 (No. 

96-0265, 1999) (finding judge mistakenly focused on cause of accident in determining whether a 

violation occurred). The responsibility of having adequate procedures is Respondent’s. See Brown 

& Root, Inc., 7 BNA OSHC 2074 (No. 16162, 1979) (“The Act . . . places final responsibility for 
59

compliance on the employer. An employer cannot shift this responsibility to an employee by a 

work rule that is not effectively communicated and enforced.”). The failure to have adequate 

procedures would be a violation irrespective of whether an accident occurred, especially in light 

of Respondent’s history of “hard starts”. 

Based on the foregoing, the Court finds that Complainant established a violation of the 

cited standards and that the violation was serious. Accordingly, Citation 1, Items 3(a) and (b) are 

AFFIRMED as serious violations of the Act. 

v. Citation 1, Item 4

Complainant alleged a serious violation of the Act in Citation 1, Item 4 as follows:

29 CFR 1910.119(l)(3): Employees involved in operating a process and

maintenance and contract employees whose job tasks will be affected by a change 

in the process were not informed of, and trained in, the change prior to start-up of 

the process or affected part of the process: 

The employer does not ensure employees involved in operating a process and 

maintenance and contract employees whose job tasks will be affected by a change 

in the process are informed of, and trained in, the change prior to start-up of the 

process or affected part of the process. In the Zone 2/CAT Wickes Boiler Area the 

employer did not ensure employees whose job tasks were affected by a change in 

the process were informed of an trained on the changes prior to startup of the 

process. Employees were exposed to fire and explosion hazards from potential 

releases of fuel gas and other flammable liquids or gasses for process changes such 

as, but not limited to: 

a) Standard Operating Procedures covering the start-up of the Wickes Boiler 

burner after the 2008 Wickes Boiler Explosion.

b) Use of temporary power to power the Wickes boiler during the 

shutdown/turnaround.

The cited standard provides:

Employees involved in operating a process and maintenance and contract 

employees whose job tasks will be affected by a change in the process shall be 

informed of, and trained in, the change prior to start-up of the process or affected 

part of the process. 

29 C.F.R. § 1910.119(l)(3).
60

Complainant alleges that Respondent violated the above-referenced standard by failing to 

inform and train employees regarding (1) changes made to the SOP for lighting the Wickes after 

the 2008 hard start; and (2) the change to temporary power on the day of the explosion. Respondent 

contends that Complainant’s allegations as to the changes made to the SOP in 2008 are timebarred. As regards the use of temporary power, Respondent submits that all affected employees 

were informed of the use of temporary power and that Complainant failed to prove that the 

procedures for lighting the boiler with temporary power would be different than with grid power. 

Complainant’s argument on the topic of the 2008 SOP changes is somewhat confusing. 

Complainant asserts that important warnings contained in the SOPs prior to the 2008 explosion 

did not make the transition to the any set of SOPs that were approved in subsequent years. Relying 

on Howard’s testimony, Complainant concluded that the procedures were deficient because of this 

failure. Complainant then goes on to argue that the failure to train on the changes that occurred in 

2008 exposed employees to fire and explosion hazards. This is confusing for a couple of reasons: 

(1) It is not clear whether Complainant is asserting that Respondent violated the standard because 

it failed to include important information in the updated SOPs, which is covered by a different 

standard (and an allegation already made by Complainant); and (2) If the failure to include that 

information is indeed the basis for the violation, then it would appear that Respondent is being 

charged with the responsibility to train employees on changes that should be included, but are not. 

To the extent that the argument is directed at the failure to account for the implementation of a 3⁄4” 

bypass valve to reduce fuel flow to the firebox—neither the allegation contained in the citation 

item nor Complainant’s brief clarify exactly what is being asserted—CSHO Hartung admitted that 

the SOPs were revised in 2010, meaning that any change made to the procedures in 2008 are no 

longer effective, thereby obviating the need to train on such changes. Further, to the extent that 
61

Complainant is alleging that Respondent failed to train employees on the change in 2008, such an 

allegation is time-barred. While there is a question about the viability of the continuing violations 

theory, such is not applicable here where Respondent updated its procedures in 2010. In other 

words, the door was closed on a continuing violation theory when Respondent was no longer 

obligated to train on changes to the process that were no longer a part of the process. In light of 

the foregoing, the Court finds that Complainant failed to establish a violation of the standard based 

on this particular instance. 

However, as regards the use of temporary power, the Court finds that it was incumbent 

upon Respondent to implement MOC procedures and both inform affected employees of the use 

of temporary power and train them regarding its use. CT Sutton, who was responsible for 

monitoring the control boards during the Wickes lighting, stated that the previous CT had reported 

trouble with the electrical components controlled by a temporary generator. (Tr. 277). In 

particular, CT Sutton noted that the use of temporary power was impacting the functionality of the 

vanes, which control air flow to the firebox. (Tr. 279). He also stated that, based on his experience 

in construction, generators equipped with ground faults (as the generator in this case) can trip out 

for unknown reasons. (Tr. 487). In the case of the Wickes, he was concerned that they could lose 

power to the controls, such as the vanes, during the lighting process. (Tr. 487–88). Though he 

noted that a loss of power would cause the controls to go into a fail-safe position, he still “thought 

they ought to be aware of the situation they had.” (Tr. 488). 

Clearly there was a change in the process; the Wickes boiler was typically run on grid 

power. None of the employees who testified could recall running the Wickes on temporary 

generator power before. (Tr. 278, 305, 347–48). While running on temporary power that day, the 

CT reported problems controlling the vanes, which have a direct impact on creating the atmosphere 
62

necessary to ignite the burner and purging the firebox prior to a lighting attempt. (Tr. 278–79). An 

operator expressed a safety concern over the consequences of the generator tripping and loss of 

power to the controls. Based on the testimony of Respondent’s employees, the Court finds that 

Complainant presented sufficient evidence to establish that the procedures for lighting the boiler 

had changed to the extent that Respondent was obligated to inform and train its employees 

regarding that change. To a certain extent, it could be said that Respondent, through the actions 

of Operator Sutton, complied with its obligation to inform affected employees of the change in the 

process; however, as testified to by the operators and other employees present that day, they had 

not received training on those changes. (Tr. 488–90). 

The Court finds that Complainant has established a violation and that it was serious. There 

is no question that Respondent knew that temporary generator power was going to be used that 

day, and it does not attempt to argue that it provided training regarding the change in the process 

or that such a change was documented, arguing instead that the change was not material. CSHO 

Hartung testified that the potential failure of the generator could impact a number of controls in 

the process, which could expose employees to potential fire and explosion hazards. (Tr. 1161–62). 

Similar concerns were expressed by Operator Sutton. (Tr. 490). Accordingly, Citation 1, Item 4, 

instance (a) is VACATED, and instance (b) is AFFIRMED.

vi. Citation 1, Item 5(a) and (b)

Complainant alleged two serious violations of the Act in Citation 1, Item 5, subparts (a)

and (b). Given their similarity, both items shall be addressed together. Complainant’s allegations 

with respect to Item 5(a) are as follows:

29 CFR 1910.147(c)(4)(ii)(B): The energy control procedures did not clearly and 

specifically outline the steps for shutting down, isolating, blocking and securing 

machines or equipment to control hazardous energy. 
63

The employer does not ensure the energy control procedures clearly and 

specifically outline the steps for shutting down, isolating, blocking and securing 

machines or equipment to control hazardous energy. In the Zone 2/CAT Wickes 

Boiler Area the employer did not ensure the energy control procedures for the 

lockout/tagout of the fuel gas and purchased gas supply lines to the Wickes Boiler 

burner clearly and specifically outline the steps for shutting down, isolating, 

blocking, and securing equipment to control hazardous energy. Employees were 

exposed to fire and explosion hazards from potential releases of fuel gas and other 

flammable liquids or gasses.

The cited standard requires energy control procedures to include “[s]pecific procedural steps for 

shutting down, isolating, blocking and securing machines or equipment to control hazardous 

energy.” 29 C.F.R. § 1910.147(c)(4)(ii)(B).

Complainant’s allegations with respect to Item 5(b) are as follows:

29 CFR 1910.147(c)(4)(ii)(D): The energy control procedures did not clearly and 

specifically outline the requirements for testing a machine or equipment to 

determine and verify the effectiveness of lockout devices, tagout devices, and other 

energy control measures: 

The employer does not ensure the energy control procedures clearly and 

specifically outline the requirements for testing a machine or equipment to 

determine and verify the effectiveness of lockout devices, tagout devices, and other 

energy control measures. In the Zone 2/CAT Wickes Boiler Area the employer did 

not ensure the energy control procedures for the lockout/tagout of the fuel gas and 

purchased gas supply lines to the Wickes Boiler burner clearly and specifically 

outline the requirements for testing a machine or equipment to determine and verify 

the effectiveness of lockout devices. Employees were exposed to fire and explosion 

hazards from potential releases of fuel gas and other flammable liquids or gasses. 

Employees were exposed to fire and explosion hazards from potential releases of 

fuel gas and other flammable liquids or gasses.

This section of the cited standard requires that energy control procedures to include “[s]pecific 

requirements for testing a machine or equipment to determine and verify the effectiveness of 

lockout devices, tagout devices, and other energy control measures.” 29 C.F.R. § 

1910.147(c)(4)(ii)(D).

According to CSHO Hartung, this citation resulted from OSHA’s request to analyze the 

valve and natural gas regulator on the Wickes gas train approximately one month after the 
64

explosion. (Tr. 1176, 1285). Hartung stated that he wanted to see whether the valve was working 

as it was intended, as he understood that it had not been tested in a while. (Id.). Prior to Respondent 

carrying out the procedure, Hartung reviewed Respondent’s LOTO procedures. (Tr. 1178). Based 

on how Respondent’s employees carried out the procedure of removing the valve and regulator 

and his review of Respondent’s lock-out/tag-out (LOTO) procedures, Hartung cited Respondent 

for having deficient LOTO procedures. Respondent contends that the citation is inappropriate 

because the valve removal was only done at the request of CSHO Hartung. Further Respondent 

argues that Complainant failed to prove that anyone was exposed to a hazard as a result of the 

alleged LOTO deficiency. 

The standard requires such LOTO procedures to be “clearly and specifically” outlined. 29 

C.F.R. § 1910.147(c)(4)(ii); see also Gen. Motors, 22 BNA OSHC 1019 (No. 91-2834, 2007).

Respondent’s LOTO procedures were deficient in two respects: (1) the procedures did not identify 

specific valves that may have been used to relieve energy and whether those valves should be open 

or closed; and (2) the procedures did not have steps for testing a machine/equipment to determine 

whether the lockout was effective. (Tr. 1177, 1182–83; Ex. C-65). Respondent did not proffer any 

evidence to contradict these deficiency findings. Accordingly, the Court finds that the terms of 

the standard were violated.

Instead of attempting to establish that its procedures were complete, Respondent contends 

that the removal of the valve would not have occurred but for CSHO Hartung’s request and that 

Complainant failed to prove that any of Respondent’s employees were exposed to a hazard as a 

result of the deficient procedures. The Court agrees with Complainant. The LOTO procedure, 

which was in effect prior to the explosion, was deficient irrespective of when or for what reason it 

was implemented. CSHO Hartung testified that he requested to look at the valve approximately 
65

five days before it was removed and that he waited to perform this particular aspect of his 

inspection until Respondent was ready to do it. (Tr. 1178). Further, CSHO Hartung was well within 

his rights to request the removal of the valve for inspection, and Respondent was under an 

obligation to ensure that its LOTO procedures were adequate for carrying out that job.27 As 

Complainant alleged, the procedures were not adequate.

The Court also finds that, contrary to Respondent’s argument, its employees were exposed 

to fire and explosion hazards. While it may be the case that the Wickes had been offline since the 

explosion, there was no evidence to suggest that it had been completely isolated from other 

equipment such that the removal of the valve, which was upstream from the Wickes, did not 

involve the potential for release of hazardous energy. Further, and more importantly, Respondent’s 

failure to have adequate procedures for LOTO exposed employees to fire and explosion hazards 

regardless of whether the Wickes had been offline. The failure to have specific LOTO procedures 

exposes employees to hazards each time those procedures are implemented, not just in the 

particular context in which the alleged deficiencies came to light. Respondent’s LOTO form, 

which is presumably used for each LOTO procedure and modified to fit the particulars of a 

particular job, does not have a provision for verifying the effectiveness of energy control measures, 

nor is there any indication on the form or its attachment as to the position of the valves (open or 

closed) that were supposed to be a part of the process for isolating the bypass valve for removal. 

The purpose of the prescribed procedure is “to guide an employee through the lockout process.” 

Drexel Chem. Co., 17 BNA OSHC 1908 (No. 94-1460, 1997). Without an adequate guide for 

what is clearly a complex lockout procedure, employees may overlook critical steps in the process, 

 

27. It should also be noted that the work requested by CSHO Hartung was not a work activity which never occurred 

but for OSHA’s valve examination request. As noted above, Respondent had previously done work on this valve in 

order to change the size and restrict the flow of gas to the firebox of the Wickes. (Tr. 311-12). 
66

which could result in an unintentional release of hazardous energy, such as hazardous 

hydrocarbons. Accordingly, the Court finds that Respondent’s employees were exposed to a 

hazard.

The Court also finds that Respondent knew or, with the exercise of reasonable diligence, 

could have known of the hazardous condition. Not only is it the responsibility of management to 

ensure that adequate procedures are in place, but members of Respondent’s management team 

were present at the time the procedures were implemented and the bypass valve was removed. 

Further, during his interview with CSHO Hartung, Stephenson admitted that the procedure did not 

indicate whether certain valves should be open or closed, nor how an employee should go about 

verifying that no energy remained in the system. (Ex. R-9).

Based on the foregoing, the Court finds that Respondent violated the cited standards and 

that the violation was serious. Accordingly, Citation 1, Items 5(a) and (b) are AFFIRMED. 

vii. Citation 1, Item 6(a) and (b)

Complainant alleged two serious violations of the Act in Citation 1, Item 6, subparts (a) 

and (b). Given their similarity, both items will be addressed together. Complainant’s allegations 

with respect to Item 6(a) are as follows:

29 CFR 1910.147(d)(3): All energy isolating devices that were needed to control 

the energy to the machine or equipment were not physically located and operated 

in such a manner as to isolate the machine or equipment from the energy source: 

The employer does not ensure all energy isolating devices that are needed to control 

the energy to the machine or equipment are physically located and operated in such 

a manner as to isolate the machine or equipment from the energy source. In the 

Zone 2/CAT Wickes Boiler Area the employer did not ensure all energy isolating 

devices for the lockout/tagout of the fuel gas and purchased gas supply lines such 

as, but not limited to, the control valves (FC 702 & FC 704) and bleed valves to the 

Wickes Boiler were physically located and operated in such a manner as to isolate 

the machine or equipment from the energy source. Employees were exposed to fire 

and explosion hazards from potential releases of fuel gas and other flammable 

liquids or gasses. 
67

The cited standard provides that “[a]ll energy isolating devices that are needed to control the 

energy to the machine or equipment shall be physically located and operated in such a manner as 

to isolate the machine or equipment from the energy source(s).” 29 C.F.R. § 1910.147(d)(3).

Complainant’s allegations with respect to Item 6(b) are as follows: 

29 CFR 1910.147(d)(5)(i): All potentially hazardous stored or residual energy was 

not relieved, disconnected, restrained or otherwise rendered safe after the 

application of lockout or tagout devices to energy isolating devices: 

The employer does not ensure all potentially hazardous stored or residual energy is 

relieved, disconnected, restrained, or otherwise rendered safe after the application 

of lockout or tagout devices to energy isolating devices. In the Zone 2/CAT Wickes 

Boiler Area the employer did not ensure all potentially hazardous stored or residual 

energy was relieved after the application of lockout or tagout devices such as 

between the two control valves (FC 702 & FC 704) on the fuel gas and purchased 

gas supply lines to the Wickes Boiler. Employees were exposed to fire and 

explosion hazards from potential releases of fuel gas and other flammable liquids 

or gasses. 

The cited standard states, “Following the application of lockout or tagout devices to energy 

isolating devices, all potentially hazardous stored or residual energy shall be relieved, 

disconnected, restrained, and otherwise rendered safe.” 29 C.F.R. § 1910.147(d)(5)(i).

According to Hartung, the basis for Complainant’s allegations with respect to Citation 1, 

Item 6 is the same activity as indicated in Citation 1, Item 5; namely, Respondent’s failure to take 

the steps that were required to be documented in the LOTO procedures. (Tr. 1185–87). 

Respondent does not contend that it complied with the requirements of the standard, and, indeed, 

there is no evidence to suggest that Respondent’s employees complied. Respondent failed to 

identify all of the energy isolating devices that were needed to remove the bypass valve and did 

not ensure that hazardous energy had been removed from the system. Not only does this show that 

Respondent failed to comply with the standards cited in Items 6(a) and 6(b), but it also illustrates 

the importance of specific, well-documented procedures: If Respondent had documented all 

appropriate isolation points, how they would be operated, and the manner in which employees 
68

could verify isolation, then such steps would probably not have been missed. See Control of 

Hazardous Energy, 54 Fed. Reg. 36644, 36670 (September 1, 1989) (noting the importance of 

detailed procedures in light of the need to follow directions carefully and the number of variables 

involved in controlling hazardous energy). Based on the evidence introduced by Complainant the 

Court finds that Respondent violated the cited standards. 

Instead, Respondent contends that Complainant failed to establish that employees were 

exposed to a hazard. Specifically, Respondent argues that: (1) Hartung was present during the 

valve removal and would not have allowed the removal of the valve to take place if there was a 

serious threat of injury; and (2) the removal of the valve took place one month after the explosion, 

which means that any residual gas left in the pipeline would have dissipated by the time the valve 

was removed. First, CSHO Hartung’s presence during the removal of the valve has no bearing on 

whether Respondent’s employees were exposed to a hazard. There is no indication in the record

that CSHO Hartung knew whether the process being followed by Respondent’s employees was 

safe at the time, nor is it clear at what point in time he made the determination that Respondent’s 

LOTO procedures were deficient. Without additional evidence, the Court finds that CSHO 

Hartung’s presence on the day of the valve removal does not make it any more or less likely that 

Respondent’s employees were exposed. Second, as noted in the Court’s discussion of Citation 1, 

Item 5, supra, there was no definitive indication that the valve or its associated pipes were free of 

hazardous energy at the time the valve was removed. The fact that the Wickes had been offline 

for approximately 30 days does not, of itself, obviate the need to protect against the possibility of 

hazardous releases of energy. Further, though the boiler was offline, there was no evidence 

regarding the presence of hydrocarbons in the upstream process lines, such as the natural gas and 
69

RFG lines. As such, there was still a possibility for a hazardous energy release. Accordingly, the 

Court finds that Respondent’s employees were exposed to a hazard.

As noted above, members of Respondent’s management team were present at the time the 

valve was being removed. Accordingly, the Court finds that it is proper to impute the knowledge 

of those managers to Respondent. See Revoli Const. Co., 19 OSHC 1682 (No. 00-0315, 2001)

(holding that knowledge of supervisors is generally imputable to employer). 

Accordingly, Citation 1 Items 6(a) and 6(b) are AFFIRMED. 

viii. Citation 2, Item 1

Complainant alleged a repeat violation of the Act in Citation 2, Item 1 as follows:

29 CFR 1910.119(d)(3)(ii): The employer did not document that equipment 

complies with recognized and generally accepted good engineering practices. 

The employer did not document that equipment in the process complies with 

recognized and generally accepted good engineering practices. In the Zone2/CAT 

Wickes Boiler Area the employer did not ensure it documented the Wickes boiler 

burner and gas train equipment complied with recognized and generally accepted 

good engineering practices such as the National Fire Protection Association 

(NFPA) Standard 85, Boiler and Combustion Systems Hazard Code, and ASME 

CSD-1, sections CF-310 & CF-330, and ASME Section VI. These practices 

include, but are not limited to the following equipment: 

1. Flame scanner/fire eyes.

2. Automatic pilot gas shutoff valve.

3. Automatic double block (positive shutoff) and automatic bleed on gas train to 

the burner. 

4. Burner management system(s) to control firebox purge, pilot ignition, burner 

starting, and shutdown.

The cited standard provides:

The employer shall document that equipment complies with recognized and 

generally accepted good engineering practices. 

29 C.F.R. § 1910.119(d)(3)(ii).

Respondent contends that the foregoing citation is duplicative of Citation 1, Item 1, which 

alleged a violation of 29 C.F.R. § 1910.119(d)(3)(i)(F). The present citation is issued under the 
70

same subsection (d)(3), and relates to the process safety information that Respondent is required 

to keep with respect to PSM-covered processes. Id. § 1910.119(d)(3)(iii). A brief comparison of 

Complainant’s allegations illustrate that Complainant essentially replaced the term “design codes 

and standards” with “recognized and generally accepted good engineering practices” and cited the 

exact same design codes and standards, such as NFPA 85. According to Complainant, an employer 

“typically complies with [(d)(3)(iii)] by developing a list of the standards and codes used at the 

facility and putting it in the PSI file.” Compl’t Br. at 52. This was the exact failure alleged by 

Complainant in Citation 1, Item 1. See Section IV.C.ii, supra. If compliance with the standard 

requires documentation of RAGAGEP, and documentation of RAGAGEP requires developing a 

list of the standards and codes used at the facility, then the Court sees no meaningful distinction 

between Citation 1, Item 1 and Citation 2, Item 1. See Capform, Inc., 13 BNA OSHC 2219, 2224 

(No. 84-556, 1989) (finding violations duplicative where abatement of one item will necessarily 

result in abatement of the other item as well). 

The Court finds that Citation 2, Item 1 is duplicative of Citation 1, Item 1. Accordingly, 

Citation 2, Item 1 is VACATED. 

ix. Citation 2, Item 2

Complainant alleged a repeat violation of the Act in Citation 2, Item 2 as follows:

29 CFR 1910.119(f)(1)(ii): The employer did not implement written operating 

procedures that addressed operating limits; including at least the following 

elements: consequences of deviation and the steps required to correct or avoid 

deviation.

a) In the Zone 2/CAT Wickes Boiler Area the employer did not ensure the written 

operating procedures addressed the operating limits of the process such as, but 

not limited to:

1. Minimum/Maximum gas pressure to the boiler burner gas train.

2. Minimum and maximum pressure (PI 721 & PI 711) at the fuel gas inlet 
71

to the Wickes.

3. Minimum and maximum fuel gas flow to the Wickes boiler burner (FI 

702).

4. Minimum and maximum combustion air flow to the Wickes boiler 

burner (FI-706).

5. Composition of the gas flow streams to the Wickes boiler burner (fuel 

gas and purchased gas) including BTU content, lower explosive limits, 

etc.

b) In the Zone 2/CAT Wickes Boiler Area the employer did not ensure the written 

operating procedures addressed the consequence of deviation from the safe 

upper and lower limits of the process such as, but not limited to:

1. Minimum/Maximum gas pressure to the boiler burner gas train.

2. Minimum and maximum pressure (PI 721 & PI 711) at the fuel gas inlet 

to the Wickes.

3. Minimum and maximum fuel gas flow to the Wickes boiler burner (FI 

702).

4. Minimum and maximum combustion air flow to the Wickes boiler 

burner (FI-706).

5. Composition of the gas flow streams to the Wickes boiler burner (fuel 

gas and purchased gas) including BTU content, lower explosive limits, 

etc.

c) In the ZONE 2/CAT Wickes Boiler Area the employer did not ensure the 

written operating procedures addressed the steps to correct or avoid deviation 

from the safe upper and lower limits of the process such as but not limited to:

1. Minimum/Maximum gas pressure to the boiler burner gas train.

2. Minimum and maximum pressure (PI 731 & PI 711) at the fuel gas inlet 

to the Wickes.

3. Minimum and maximum fuel gas flow to the Wickes boiler burner (FI 

702).

4. Minimum and maximum combustion air flow to the Wickes boiler 

burner (FI-706).

5. Composition of the gas flow streams to the Wickes boiler burner (fuel 

gas and purchased gas) including BTU content, lower explosive limits, 

etc.

Employees were exposed to fire and explosion hazards from potential releases of 

fuel gas and other flammable liquids or gasses. 

The cited standard provides:

[O]perating procedures shall address at least the following elements . . . . 

Consequences of deviation; and Steps required to correct or avoid deviation. 

29 C.F.R. § 1910.119(f)(1)(ii).
72

This citation item addresses the same subject matter as Citation 1, Item 3—Respondent’s 

operating procedures. Citation 1, Item 3 addressed the procedures from the standpoint of initial 

startup. In this instance, however, Complainant alleges that Respondent’s operating procedures 

were deficient with respect to their discussion of the limits of the process, the consequences of 

deviation, and the steps required to correct or avoid deviation. As in Citation 1, Item 3, Respondent 

does not contend that it had procedures that addressed the alleged deficiencies; rather, it argues 

that: (1) the standard does not apply; (2) this Citation is duplicative of Citation 1, Item 3; (3) the 

deficiencies alleged are irrelevant to the startup of the boiler; and (4) and there is no meaningful 

difference between the use of natural gas and RFG. 

The Court has already found that the standard applies. See Section IV.A, supra. The Court 

has also found that gas pressure and flow are relevant to startup operations, as subsequent data 

revealed not only typical operating limits, but also consequences of deviation. See Section IV.C.iv, 

supra. While that data may not be in the bypass valve operator’s line of sight, that does not make 

such information irrelevant; instead, it merely impacts the manner in which that information is

conveyed/relayed. Presumably, the availability of such information would have a fairly direct 

impact on the employee who is responsible for operating the valve and the manner in which they 

“crack the valve a small amount and for a short period of time”. See Resp’t Br. At 61. As to the 

composition of the gas flow streams, as alleged in Complainant’s fifth subpart, the Court has 

previously found that a meaningful difference exists between the use of RFG (which may be mixed 

with natural gas) and the use of natural gas alone. As to any other possible iterations of RFG, the 

Court cannot definitively find that each and every possibility must be accounted for, considering 

the variability of hydrogen. (Tr. 1712). There was not sufficient evidence to indicate whether 

accounting for such variability was feasible. However, to the extent that safe outer limits can be 
73

imposed, regardless of composition, the fact that RFG can be variable does not absolve Respondent 

of its responsibility to account for such information and variations in its operating procedures. 

Respondent raises a new argument with respect to this item—that it is duplicative of 

Citation 1, Item 3. While the standard cited is part of the same subsection, and addresses similar 

subject matter (operating procedures), the citation items address separate parts of the procedures. 

If Respondent were to abate Citation 1, Item 3 by updating the initial startup procedures, such 

information would not be sufficient to comply with Respondent’s obligations to consider and 

document the potential consequences of deviation and the steps required to correct or avoid 

deviation. Thus, the citation items are not duplicative. 

With respect to the issues of knowledge and exposure, the Court hereby incorporates its 

findings on the same issues found in Citation 1, Item 3. See Section IV.C.iv. With respect to 

characterization, the Court has already determined that Respondent is not liable for a repeat 

violation based on the conduct of GWE-WR. However, given that the hazards alleged in this 

citation item are the same as those alleged in Citation 1, Item 3, the findings of which have been 

incorporated by reference, the Court finds that the violation was serious. 

The Court finds that Complainant has established a violation of the cited standard. 

Accordingly, Citation 2, Item 2 is AFFIRMED as a serious violation of the Act. 

x. Citation 2, Item 3

Complainant alleged a repeat violation of the Act in Citation 2, Item 3 as follows:

29 CFR 1910.119(g)(2): The employer did not provide refresher training at least 

every three years to each employee involved in operating a process to assure that 

the employee understands and adheres to the current operating procedures of the 

process. 

The employer does not provide refresher training at least every three years to each 

employee involved in operating a process to assure that the employee understands 

and adheres to the current operating procedures of the process. In the Zone 2/CAT 

Wickes Boiler Area the employer did not ensure refresher training was provided at 
74

least every three years to each employee involved in operating the Wickes Boiler 

to assure that the employee understood and adhered to the current operating 

procedures. Employees were exposed to fire and explosion hazards from potential 

releases of fuel gas and other flammable liquids or gasses. 

The cited standard provides:

Refresher training shall be provided at least every three years, and more often if 

necessary, to each employee involved in operating a process to assure that the 

employee understands and adheres to the current operating procedures of the 

process. 

29 C.F.R. § 1910.119(g)(2).

According to Respondent’s training records, within three years of the accident each of the 

individuals that were involved in starting the boiler received training and was tested with respect 

to various processes in Zone 2 according to job description. (Exs. C-44 to C-51).28 According to 

those documents, Willson, Kellerhall, Operator Sutton, Mann, and Koesler were required to 

“describe/discuss how to start the Wickes boiler.” (Id.). The testing for CTs Walker and Sutton 

did not include a question regarding the Wickes startup procedure, nor did the testing for Smith, 

who was manning the sight glass. (Id.). The only question involving the Wickes posed to Smith 

asked for a description of “how to switch the fans on the wickes boiler.” (C-44, C-45). CT Sutton 

testified there is no CT-specific testing related to lighting the boiler. (Tr. 325). Respondent’s own 

Incident Investigation Report determined that the training did not cover the steps discussed in an 

earlier version of the SOP, which Respondent’s investigation team found should have been 

included in subsequent versions of the SOP. (Ex. C-30 at 13). 

Many of the employees involved in the explosion testified they had not seen the 2008 

version of the Wickes lighting procedure or the section of the Operations Manual dealing with the 

Wickes. (Tr. 166–70, 249, 284, 322, 539; Ex. C-35). Those same employees gave differing 

 

28. Similar exhibits can be found in R-201, R-202, R-204, R-212, R-214, R-219, R-221. 
75

descriptions of how to operate the bypass valve, which controls the flow of fuel to the Wickes. 

All of them agreed, however, that the then-current SOPs were deficient because, at the very least, 

there was no indication as to how much to open the valve, or for how long. (Tr. 164, 355, 549; Ex. 

C-33). The Court finds there is enough deviation between the various descriptions to suggest that 

training was inconsistent and deficient.

29

 Considering that the bypass valve was characterized as 

“very touchy” and that slight movements could drastically change the fuel flow rate to the firebox 

(so much so that Respondent previously attempted installing a smaller valve), Respondent had an 

obligation to provide more specific training and instruction to its employees. J.K. Butler Builders, 

Inc., 5 BNA OSHC 1075 (No. 12354, 1977) (“A review of applicable case law leads us to define 

a work rule as an employer directive that requires or proscribes certain conduct, and that is 

communicated to employees in such a manner that its mandatory nature is made explicit and its 

scope clearly understood.”). Further, nearly all who testified, including supervisory personnel,

agreed that the Wickes lighting procedures were deficient and should have included the bolded 

warnings contained in the 2008 lighting procedure. (Tr. 167–71, 549, 710–11, 714; Ex. C-33, C35).

Based on the foregoing, the Court finds that Respondent violated the terms of the standard 

by failing to provide thorough and consistent training to its employees such that they were aware 

of and could execute the lighting procedure. Respondent knew or should have known of the 

 

29. Koesler stated that he was trained to open the valve “1/4 spoke”, that there was no set amount of time to leave 

open, and that he was told to purge “until you thought it was ok”. (Tr. 113, 116, 121). Kellerhall testified that he did 

not recall specific instructions other than that the valve is “very touchy” and that you “don’t want to leave it open very 

long.” (Tr. 219). CT Sutton testified that he told the investigator that you turn the valve about an inch. (Tr. 301). 

Willson testified that he had not been instructed as to any specific instructions regarding the valve, instead 

characterizing the process as a “dance”. (Tr. 353). McCurtain stated that he was trained to open the valve “slightly” 

or “just a little bit” and that if you don’t achieve ignition “quickly” or “shortly” to close the valve. (Tr. 518, 528). 

Finally, Howard, who provided training and testing, testified that he trained operators to “[s]lowly open it until you 

reach one spoke . . . . And if it does light, you move on with the procedure; if it does not, then you close it off.” (Tr. 

693).
76

violation because its managers were responsible for providing training and for updating, 

reviewing, and approving the procedures. See Revoli Constr., Co., 19 BNA OSHC 1682 (No. 00-

0315, 2001) (holding that actual or constructive knowledge of supervisory personnel can be 

imputed to their employer). Further, due to the failure to properly train its employees, Respondent 

exposed them to the hazard of fire and explosion, which, as described above, can cause serious 

injury and/or death. Accordingly, Citation 2, Item 3 is AFFIRMED as a serious violation of the 

Act.

xi. Citation 2, Item 4

Complainant alleged a repeat violation of the Act in Citation 2, Item 4 as follows:

29 CFR 1910.119(j)(2): The employer did not establish and implement written 

procedures to maintain the on-going mechanical integrity of process equipment:

The employer does not establish and implement written procedures to maintain the 

on-going mechanical integrity of process equipment. In the Zone 2/CAT Wickes 

Boiler Area the employer did not ensure written procedures were established and 

implemented for the testing and inspection of the Low Combustion Air Flow Fuel 

Gas Shut-off system safeguard. Employees were exposed to fire and explosion 

hazards from potential releases of fuel gas and other flammable liquids or gasses. 

The cited standard provides:

The employer shall establish and implement written procedures to maintain the ongoing integrity of process equipment. 

29 C.F.R. § 1910.119(j)(2).

According to CSHO Hartung, Respondent failed to have an established and written 

procedure to maintain the mechanical integrity of process equipment. (Tr. 1060). Specifically, he 

noted that the refinery had relied on a breakdown maintenance system, as opposed to a preventative 

system of maintenance to ensure equipment was kept in working order. (Tr. 1062). Although he 

noted that management was well-versed in process safety management and the need for such a 

program, they did not have an established, written procedure in place. (Tr. 1063). 
77

Respondent contends that Complainant failed to prove a violation of this performancebased standard, arguing that it had determined that a procedure to ensure that an air flow switch 

worked properly was sufficient and that Complainant is attempting to supplant its own 

determination of how to properly implement the requirements of the standard. Finally, Respondent 

contends that, insofar as its procedures were not compliant, any violation should be considered de 

minimis because the boiler was inspected annually by the State of Oklahoma. Any deficiency in 

procedure, therefore, would not create a hazard to employees because the boiler had been deemed 

safe and functional by a third party. 

The Court finds that Complainant has established a violation of the cited standard. The 

standard requires Respondent to “establish and implement written procedures.” 29 C.F.R. § 

1910.119(j)(2). The only evidence of a written procedure was a document that was labeled “Draft” 

in multiple locations throughout the document. (Ex. C-58). In addition, the document contained 

editing lines, which are associated with the “Track Changes” function in Microsoft Word. (Id.). 

There was no testimony as to whether this draft was established as the proper procedure, nor, based 

on the date of the document, does it appear that Respondent was responsible for generating it in 

the first place. The only indication that a procedure for maintaining mechanical integrity even 

existed appears in the OSHA 1-B Narrative for this citation item. (Ex. R-16). In that narrative, 

Howard told CSHO Hartung that he could not remember whether there was a written procedure 

for testing the airflow interlocks, but that there was a checklist. (Id.). No such checklist was 

introduced into the record. 

Based on the foregoing, it does not appear that Respondent had an established and written 

procedure for maintaining the on-going integrity of process equipment. Although CSHO Hartung 

noted that Respondent was well-versed in PSM and the necessity of such a program, this does not 
78

make up for not having one. Draft procedures, such as the one at issue, can produce confusion, 

especially, as here, where the procedures have edit marks, leaving the operator to guess at whether 

the procedure they are attempting to follow is accurate. Without specific procedures, and an 

established program to ensure that process equipment is functioning properly, Respondent exposed 

its employees to potential explosion and fire hazards. (Tr. 1158). Contrary to Respondent’s 

argument, it is of little consequence that a third party verified the functionality of the boiler’s fuel 

controls. The obligation to ensure the ongoing mechanical integrity of the process equipment lies 

with Respondent. The failure to have a thorough procedure to examine the process controls, such 

as safety interlocks, exposed employees to serious injury because the purpose of those interlocks 

is to automatically close down fuel valves in a low airflow situation. If those interlocks were to 

fail, or not work as intended, then the firebox could be flooded, which can lead to an explosion. 

Finally, based on the fact that, at the very least, it had a draft procedure for testing the 

interlocks, Respondent knew or could have known of the violative condition. Accordingly, 

Citation 2, Item 4 is AFFIRMED as a serious violation of the Act. 

xii. Citation 2, Item 5

Complainant alleged a repeat violation of the Act in Citation 2, Item 5 as follows:

29 CFR 1910.119(l)(1): The employer did not establish and implement written 

procedures to manage changes to process chemicals, technology, equipment, and 

procedures; and, changes to facilities that affect a covered process: 

a) In the Zone 2/CAT Wickes Boiler Area the employer did not ensure 

management of change procedures were implemented to manage changes to the 

process operating procedures such as, but not limited to: 

1. The amount of time the firebox is purged prior to attempting to light the 

pilot of after a failed burner lighting attempt. 

2. The amount that the gas control valve bypass valve is to be opened.

3. The time that the gas control valve bypass valve is allowed open before 

the burner lights.

b) In the Zone 2/CAT Wickes Boiler Area the employer did not ensure 
79

management of change procedures were implemented to manage changes to the 

process equipment, such as the addition of temporary power to operate the 

Wickes Boiler. 

Employees were exposed to fire and explosion hazards from potential releases of 

fuel gas and other flammable liquids or gasses. 

The cited standard provides:

The employer shall establish and implement written procedures to manage changes

(except for “replacements in kind”) to process chemicals, technology, equipment, 

and procedures; and changes to facilities that affect a covered process. 

29 C.F.R. § 1910.119(l)(1).

This citation item is a companion to Citation 1, Item 4, which addressed the failure to 

inform and train employees on the changes to the operating procedure after the 2008 explosion. 

The only difference is that the standard cited in the present citation item addresses Respondent’s 

obligation to establish and implement written procedures to manage those changes. Compare 29 

C.F.R. § 1910.119(l)(1), with id. § 1910.119(l)(3). As such, the arguments proffered by 

Complainant and Respondent are virtually the same, as is the Court’s ruling. 

Complainant asserts that, with respect to instance (a), Respondent failed to implement an 

MOC in response to changes that were made to the equipment following the 2008 explosion; 

namely, the introduction of a smaller fuel gas bypass valve. (Tr. 713–14; Ex. C-19). Respondent’s 

employees testified, and the Court agrees, that changes made to the valve size required the 

implementation of new written procedures as the change impacted the flow rate of fuel. After it 

was determined that the smaller valve would not work, Respondent reverted back to the original 

3-inch valve. (Tr. 312). Notwithstanding the change back to the original, Complainant contends 

that Respondent’s failure to update the SOP to also reflect that change constituted a violation 

because Respondent failed to update its SOP to reflect this change “for several years.” Compl’t Br.

at 63. The problem for Complainant, however, is that the SOPs were updated to reflect the change 

back to the 3-inch valve in 2010. (Ex. C-36). Complainant asserts that the failure to implement 
80

MOC after the 2008 changes is a continuing violation of the standard. This would only be correct 

if there had been no subsequent changes to the procedure; the moment that the procedures were 

changed, the violation no longer continued (at least insofar as Respondent was obliged to 

implement written procedures for a process that no longer existed). Therefore, as to instance (a), 

the Court does not find a violation of the standard.

However, with respect to instance (b), the Court finds, as it did in Citation 1, Item 4, that 

Respondent was obligated to implement written procedures regarding the use of temporary power 

to light the Wickes. See Section IV.C.v. Since the Court has already addressed the necessity of 

implementing MOC with respect to the use of temporary power, it will incorporate by reference 

the findings in Section IV.C.v. Based on those findings, Citation 2, Item 5, instance (a) is 

VACATED, and instance (b) is AFFIRMED as a serious violation of the Act. 

xiii. Citation 3, Item 1

Complainant alleged an other-than-serious violation of the Act in Citation 3, Item 1 as 

follows:

29 CFR 1910.147(c)(4)(ii)(A): The energy control procedures did not contain a 

specific statement on the intended use of the procedure.

The employer does not ensure energy control procedures contain a specific 

statement on the intended use of the procedure. In the Zone 2/CAT Wickes Boiler 

Area the employer did not ensure the energy control procedures for the 

lockout/tagout of the fuel gas and purchase gas supply lines to the Wickes Boiler 

burner contain a specific statement on the intended use. Employees were exposed 

to fire and explosion hazards from potential releases of fuel gas and other 

flammable liquids or gasses. 

The cited standard provides:

The procedures shall clearly and specifically outline the scope, purpose, 

authorization, rules, and techniques to be utilized for the control of hazardous 

energy, and the means to enforce compliance including, but not limited to, the 

following: (A) A specific statement of the intended use of the procedure.

29 C.F.R. § 1910.147(c)(4)(ii)(A).
81

In his brief, Complainant asserts that, due to the Court’s page-limit restrictions, he did not 

include a discussion of the merits of Citation 3, Item 1, instead opting to rest on the record 

evidence. Compl’t Br. at 75. The Court has reviewed the transcript for any mention of Citation 3, 

Item 1 from Inspection No. 663538, which was issued by CSHO Hartung, and cannot find a single 

mention of either the citation item itself or 1910.147(c)(4)(ii)(A).30 Although the OSHA 1-B

Narrative was introduced into evidence as a preliminary matter, no subsequent discussion of that 

document occurs in the transcript. (Ex. R-18). Without testimony or supporting evidence, the 

Court is not in a position to determine whether a violation of the standard occurred, whether 

Respondent had knowledge of the violation, or whether employees were exposed to a hazardous 

condition. Without such evidence, the Court finds that Complainant failed meet its burden of 

proving a violation of the standard. Accordingly, Citation 3, Item 1 is VACATED.

D. The Warehouse Inspection – Docket No. 13-0644 – Inspection No. 778042

i. Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:

29 CFR 1910.23(a)(2): Every ladderway floor opening or platform was not guarded 

by a standard railing, or swinging gate or so offset that a person cannot walk directly 

into the opening. 

The employer does not ensure every ladderway floor opening or platform was 

guarded by a standard railing, or swinging gate or so offset that a person cannot 

walk directly into the opening. This violation was observed on or about November 

26, 2012, in the Crude and Alky Units where the employer did not ensure that 

ladderway floor openings were guarded by standard railing, or equivalent means, 

exposing employees to fall hazards greater than 4 feet above the ground. 

The cited standard provides:

Every ladderway floor opening or platform shall be guarded by a standard railing with 

standard toeboard on all exposed sides (except at entrance to opening), with the passage 

 

30. CSHO Rambo also issued a Citation 3, Item 1 in Inspection No. 778042, which was discussed at trial.
82

through the railing either provided with a swinging gate or so offset that a person cannot 

walk directly into the opening. 

29 C.F.R. § 1910.23(a)(2).

This citation item is based on CSHO Rambo observing two separate ladderways that were 

either left unguarded or had the swing gate tied back with chicken wire in the Crude and Alky 

Units. (Tr. 1426–28, 1492; Ex. C-72). Rambo testified he observed contractor employees working 

near the missing and/or tied-back swing gates, which exposed them to a fall of roughly 15–30 feet. 

(Tr. 1430). Because the exposed employees were contractors, Rambo determined that Respondent 

was liable as the correcting or controlling employer pursuant to OSHA’s Mult-Employer Worksite 

doctrine. (Tr. 1435). Rambo could not determine who had created the condition or for how long 

it had lasted. (Tr. 1492–93). 

According to David Johnson, who was a safety specialist for Respondent from 1995 to 

2013, Respondent instituted a ladderway program, as it were, in response to a previous inspection 

citation. (Tr. 2129). In addition, Johnson testified that Respondent hired two contractors for this 

specific turnaround “whose sole job was to go with the safety guy and an operator to every unit, 

every ladderway in every unit, identify them, and then make sure that there was appropriate 

guarding on them.” (Tr. 2129). Pursuant to this program, Respondent ended up modifying or 

installing protection on over 600 different ladderway openings and placed a priority on all requests 

to fix such openings. (Tr. 2129–30). According to David Armstrong, Respondent’s warehouse 

technician, swing gates are stored in the warehouse and are issued to supervisors on request. (Tr. 

1349–50). 

Respondent contends that Complainant did not establish that it failed to exercise reasonable 

diligence such that it could have known of the violative condition, and the Court agrees. As noted 

above, there is no evidence indicating how long the cited condition existed. In order to determine 
83

whether Respondent could have known of the violation, there must be evidence that Respondent 

had the opportunity to observe it. See Cranesville Block Co., Inc./Clark Division, 23 BNA OSHC 

1977 (No. 08-0316 et al., 2012) (holding that complainant’s failure to introduce evidence 

regarding length of time condition existed, respondent’s inspection program, or its exercise of 

reasonable diligence precluded a finding of constructive knowledge). Rambo testified that he 

based his determination of knowledge on the fact that Dan Looney, Respondent’s Safety Manager, 

told him that he had observed open ladderways in the past. (Tr. 1493). Looney told Rambo that 

he would direct the contractor to fix or close the ladder if he observed the conditions described 

above. (Tr. 1493–94). Rambo also testified that during the turnaround each unit had a supervisor 

and a safety technician during each shift, intimating that Respondent had the opportunity to 

observe the conditions. (Tr. 1434). 

Whether considering the foregoing under a multi-employer theory, or just the typical 

employer knowledge analysis, the Court finds that Complainant has failed to prove its prima facie 

case. Whether Looney saw other open ladders at other locations at some point in time does not 

establish that Respondent was aware of the particular violations at issue in this citation item. In 

fact, in response to cross-examination, Rambo admitted that Looney told him they direct 

contractors and employees to close swing gates or replace them if they are open or otherwise in 

need of repair and that this is what a reasonable employer would do under such circumstances. (Tr. 

1493–94). Complainant did not rebut Respondent’s claims that it had such a program of inspection 

and repair in place. Given that there was no indication as to how long these two isolated conditions

existed, and considering that Respondent took extensive measures to uncover violations by 

implementing an inspection and repair program, the Court finds that Complainant failed to 
84

establish that Respondent knew or could have known of the condition. Accordingly, Citation 1, 

Item 1 is VACATED.

ii. Citation 1, Item 2

Complainant alleged a serious violation of the Act in Citation 1, Item 2 as follows:

29 CFR 1910.101(b): The in-plant handling, storage, and utilization of all 

compressed gases in cylinders, portable tanks, rail tankcars, or motor vehicle cargo 

tanks were not in accordance with Compressed Gas Association Pamphlet P-1-

1965, which is incorporated by reference as specified in CFR 1910.6:

The employer does not ensure the in-plant handling, storage, and utilization of all 

compressed gases in cylinders, portable tanks, rail tankcars, or motor vehicle cargo 

tanks is in accordance with Compressed Gas Association Pamphlet P-1-1965, 

which is incorporated by reference as specified in CFR 1910.6. The violation was 

observed on or about October 29, 2012, in the welding shop the employer did not 

ensure that compressed gas cylinders were stored with protective caps exposing 

employees to struck-by hazards. 

The cited standard provides:

The in-plant handling, storage, and utilization of all compressed gases in cylinders, 

portable tanks, rail tankcars, or motor vehicle cargo tanks shall be in accordance 

with Compressed Gas Association Pamphlet P-1-1965, which is incorporated by 

reference as specified in § 1910.6.

29 C.F.R. § 1910.101(b).

During Rambo’s inspection of the warehouse, he observed a number of compressed gas 

cylinders that did not have caps on them. (Ex. C-72 at 6–8). This was confirmed by Armstrong, 

who works in the warehouse. (Tr. 1319). Armstrong testified that the gas cylinders were used by 

various employees and contractors. (Tr. 1322). According to Rambo, he interviewed the 

maintenance superintendent, Johnny Reddell, who told him that the cylinders had been left in that 

condition since a dust disturbance closed down the warehouse for a week and that the caps were 

only placed back on the cylinders after he brought it to their attention. (Tr. 1386, 1389–90). Based 

on his observations and interviews, Rambo determined that Respondent violated the standard. 
85

First, the Court rejects Respondent’s argument that the cylinders in question were actively

being used, rather than stored. Armstrong initially testified that the cylinders were located in the 

welding shop, which means that they were not in a storage location and were in use. (Tr. 1363–

64). However, under cross-examination, Armstrong admitted that he did not know whether the 

cylinders had been used either in the last 24 hours or on any of the previous shifts. (Tr. 1372). As 

noted above, however, Reddell told Rambo that they placed the caps back on the cylinders after it 

had been pointed out to them. If the cylinders were being used, there would have been no need to 

place the caps on them. Further, the Court rejects the idea that because the cylinders were not in a 

typical storage location they are not being “stored”. Other than Armstrong’s testimony as to the 

location of the cylinders, there was no indication that they were in use at the time of the inspection. 

This is supported by the fact that the various tubes and wires associated with the cylinder were 

neatly wrapped around the cylinder. (Ex. C-72 at 6). Because the cylinders were being stored 

without caps, the Court finds that Respondent violated the standard. 

Second, the Court finds that Respondent knew or could have known of the condition. 

According to Rambo’s testimony, the condition had existed for at least a week. (Tr. 1390). 

Admittedly, the warehouse had been closed for most of that time due to a dust disturbance that 

prevented employees from working in the warehouse; however, Rambo testified that there were 

employees working in the warehouse when he arrived.31 (Tr. 1389–90). The cylinders were stored 

in a fairly conspicuous area that could have been observed by anyone passing through. (Tr. 1320; 

Ex. C-72). Because it is not known who created the condition, Respondent contends that it should 

not be held liable as a controlling employer. 

 

31. In that respect, the Court rejects Respondent’s argument that there were no employees in the facility at the time 

of the inspection. See Resp’t Br. at 70 n.22.
86

“[A]n employer with overall supervisory authority at a multi-employer work site, who has 

hired and entered into contractual relationships with subcontractors who are performing the work 

at the site, can be found liable for violations created by the subcontractors, as long as the 

controlling employer ‘could reasonably have been expected to prevent or abate by reason of its 

supervisory capacity.’” E.P. Guidi, Inc., 21 OSHC BNA 1413 (No. 04-1055, 2006) (quoting

Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188 (No. 12775, 1975)). In this case, 

as opposed to cases like E.P.Guidi, the worksite is owned and wholly controlled by Respondent. 

Further, Respondent’s witnesses testified that, during the turnaround, each unit was assigned a 

Wynnewood Refining Company supervisor and safety technician to ensure compliance with safety 

rules and, therefore, Respondent took responsibility for ensuring the safety of both employees and 

contractors. (Tr. 2111–2112). See Grossman, 4 BNA OSHC at 1188 (“The general contractor is 

well situated to obtain abatement of hazards, either through its own resources or through its 

supervisory role with respect to other contractors. It is therefore reasonable to expect the general 

contractor to assure compliance with the standards insofar as all employees on the site are 

affected.”). Finally, Armstrong testified that at least one of the supervisors was in the warehouse 

approximately 4–5 times per day, meaning that there was ample opportunity to view the condition, 

which was located in plain sight. (Tr. 1358). Thus, the Court finds that Respondent knew or could 

have known of the condition. 

Further, the purpose of the standard is to prevent the possibility that a cylinder could 

become a projectile if the valve at the top is broken off. (Tr. 1388). Because there were 

Wynnewood employees in the warehouse at the time the violation was observed, the Court finds 

that they, as well as contractor employees, were exposed to the hazard, and that the violative 
87

condition was serious. (Tr. 1388). Complainant has established its prima facie case. Accordingly, 

Citation 1, Item 2 is AFFIRMED.

iii. Citation 1, Item 3

Complainant alleged a serious violation of the Act in Citation 1, Item 3 as follows:

29 CFR 1910.119(h)(2)(v): The employer did not periodically evaluate the 

performance of contract employers in fulfilling their obligations as specified in 

paragraph 1910.119(h)(3):

Wynnewood does not have a system to periodically evaluate the performance of 

their contractors in fulfilling their obligations as specified in paragraph 

1910.119(h)(3). Wynnewood does not evaluate whether or not each contractor:

a) Trains their employees in the work practices necessary to safely perform their 

job;

b) Instructs their employees on the known potential fire, explosion, or toxic release 

hazards related to their job and the applicable provisions of the emergency 

action plan;

c) Documents, records and maintains a record that all their employees have 

received and understand the training required; 

d) Assures that each employee follows the safety rules of the facility.

Contractor employees were observed exiting various process areas without signing 

out; not wearing appropriate eye or face protection while mixing and applying 

refractory products, and working on scaffolds that were not properly designed or 

erected. No formal process to evaluate contractor performance is in place at the 

refinery. 

The cited standard provides:

The employer shall periodically evaluate the performance of contract employers in 

fulfilling their obligations as specified in paragraph (h)(3) of this section. 

29 C.F.R. § 1910.119(h)(2)(v).

After conducting interviews with members of Respondent’s safety department, CSHO 

Rambo determined that Respondent had violated the standard requiring periodic monitoring of 

contract employer’s compliance with paragraph (h)(3) of the same standard. Rambo testified that 

Looney had told him that the safety department conducted self-audits but that they did not maintain 

documentation of their audits. (Tr. 1457). Rambo also testified that he had never been provided 
88

with documentation of contractor performance audits. (Tr. 1457). Shane Stair, a safety specialist, 

told Rambo that he was unsure whether they had an evaluation process for contractors, and David 

Johnson, who also testified, told Rambo that they did not evaluate contractors. (Tr. 1458). In light 

of the fact that all three of those men were a part of the safety department, Rambo testified that “it 

gave me a sense of no one wanted to take ownership of safety when it came to others outside of 

Wynnewood working inside the refinery.” (Tr. 1458).

According to David Johnson, the turnaround had a significant impact on the operations of 

the refinery. During a normal workday, Respondent had approximately three to four safety 

personnel to assess safe work practices. (Tr. 2109). During a turnaround, however, Johnson stated 

that the safety workforce increased to 40, which included approximately 14 Wynnewood 

employees. (Tr. 2110). The rest of the safety crew came from a contractor that specializes in 

turnarounds, Total Safety. (Tr. 2111). The crew, which was split into two shifts and broken out 

by zone, would review safety procedures and perform field audits. (Tr. 2113). On crossexamination, Johnson testified that “we had a system in place for our field safety people to go out 

and evaluate how the contractors were working safely” and included verification of those 

evaluations through the use of field notes. (Tr. 2149). To the extent that violations were observed, 

Johnson testified that the violation was abated and the offending contractor/employee was 

counseled; in some instances, Respondent had to go so far as to remove certain contract employees 

from the premises. (Tr. 2120). Johnson also testified that Respondent utilized a system known as 

PICS (Pacific Industrial Contractors Services), which is a third-party contractor that evaluates 

potential contractors based on a pre-determined set of criteria. (Tr. 2105–06). Those criteria 

include an evaluation of whether the contractor provides the necessary training and possesses 

adequate written safety programs to perform the work needed at the refinery. (Tr. 2108). Based 
89

on this testimony, Respondent contends that it exercised reasonable diligence in monitoring 

contractor compliance with (h)(3). 

Complainant alleges that Respondent violated the standard in all respects; namely, that it 

failed to periodically evaluate the performance of contractors with respect to each of the duties 

listed under (h)(3). However, based on Respondent’s use of the PICS system to evaluate 

contractors, the Court finds that Respondent complied with its obligations as to (a), (b), and (c) as 

described in the citation item. Complainant did not present evidence to suggest that Respondent’s 

use of the PICS system was insufficient with respect to those issues. Rather, based on Rambo’s 

testimony, Complainant’s focus appears to be instance (d), which claims that Respondent failed to 

ensure that contract employers “assures that each employee follows the safety rules of the facility.” 

29 C.F.R. § 1910.119(h)(3)(iv). The primary bases for the allegation are, as mentioned above, the 

interviews conducted by Rambo and Rambo’s discovery of violative conditions around the 

refinery as recounted in the body of the citation. 

As noted above, during the turnaround Respondent was responsible for tracking over 1500 

additional contract employees at the refinery per shift. In response, Respondent put together a 

safety team of 40 people to track, observe, and assist these employees. However, the existence of 

violations, alone, is not sufficient to establish that Respondent failed to periodically evaluate the 

performance of its contractors. Further, though Rambo testified that multiple safety employees 

told him that they did not monitor the performance of contractors, Johnson provided some context 

for the comments made to Rambo by Looney. Specifically, Johnson said that he disagreed with 

Looney’s purported statement that Respondent “do[es] not oversee contractors as far as safety 

when they do their job.” He explained, instead, that contractor employees are required, as 

indicated by the standard, to oversee/ensure the safety of their own employees. See 29 C.F.R. § 
90

1910.119(h)(3)(iv) (“The contract employer shall assure each contract employee follows the safety 

rules of the facility . . .”). Johnson then went on to discuss the manner in which Respondent 

evaluated its contractors from an initial and ongoing perspective. (Tr. 2105, 2109–2115). 

Complainant did not rebut Johnson’s testimony regarding its evaluation process; rather, it merely 

pointed out that Respondent failed to provide documentation of the evaluations. (Tr. 2147). The 

cited standard, as compared to other subsections within 1910.119, does not have a written 

documentation requirement; rather, it only requires Respondent to perform periodic evaluations. 

Based on the foregoing, the Court finds that Complainant failed to prove a violation of the standard. 

Accordingly, Citation 1, Item 3 is VACATED.

iv. Citation 1, Item 4

Complainant alleged a serious violation of the Act in Citation 1, Item 4 as follows:

29 CFR 1910.157(c)(1): Portable fire extinguishers were not mounted, located and 

identified so that they were readily accessible without subjecting the employees to 

injuries:

The employer does not ensure portable fire extinguishers are mounted, located and 

identified so that they are readily accessible without subjecting the employees to 

injuries. This violation was observed on or about October 29, 2012, the employer 

did not ensure fire extinguishers were free from obstruction and readily accessible 

exposing employees to the hazards of fire, trips and falls: 

a) A fire extinguisher in the warehouse was blocked by boxes.

b) A fire extinguisher in the pump shop was blocked by a large crate and air lines.

c) Two fire extinguishers in the welding shop were not mounted. 

The cited standard provides:

The employer shall provide portable extinguishers and shall mount, locate and 

identify them so that they are readily accessible to employees without subjecting 

the employees to possible injury. 

29 C.F.R. § 1910.157(c)(1).
91

While in the maintenance warehouse, CSHO Rambo observed a number of fire 

extinguishers that were not properly mounted or were otherwise not readily accessible as required 

by the standard. (Tr. 1391; Ex. C-72 at 18–20). Respondent contends that, notwithstanding the 

existence of the conditions, Complainant failed to prove how long the condition lasted or that 

Respondent knew or could have known of the violations. The Court finds that Complainant has 

established a violation of the standard. 

 The testimony was fairly consistent that the warehouse had an issue with blocked fire 

extinguishers. According to Armstrong, he observed fire extinguishers that were blocked in or 

were not properly mounted during the turnaround, which he attributed to the constant influx of 

materials coming into the warehouse to fill work orders. Though he admitted that the turnaround 

was not the first time he had observed this condition. (Tr. 1324, 1330). He agreed that the 

extinguishers identified in Complainant’s exhibits were not readily accessible and characterized 

the issue of blocked extinguishers as an “ongoing hazard”. (Tr. 1330). Armstrong also testified 

that the warehouse manager’s office was right next to one of the blocked extinguishers. (Tr. 1327; 

Ex. C-72 at 18–20). Respondent performed a self-audit at the end of August 2012, not long before 

Rambo’s inspection. (Ex. C-74). The first item of that audit identifies multiple, blocked fire 

extinguishers, including one “located outside the south door of the office.” (Ex. C-74). According 

to Rambo, Richard McCaulla, the warehouse manager, told him that he was aware that the fire 

extinguisher outside of his office was blocked and explained that the blockage was the result of an 

influx of materials and a lack of space.32 (Tr. 1392). 

 

32. The self-audit also identified Mr. McCaulla as the party responsible for correcting the blocked fire extinguishers 

and that he was to correct the condition by “15 Oct 12”. (Ex. C-74). CSHO Rambo’s inspection took place on October 

29, 2012. (Tr. 1381). 
92

The Court finds, consistent with the testimony of Armstrong, that the condition of blocked 

or otherwise improperly mounted fire extinguishers was an “ongoing hazard” in Respondent’s 

warehouse. Respondent’s warehouse manager admitted that he was aware of blocked 

extinguishers and the reasons therefor; one of the blocked extinguishers was right outside his 

office; and an audit of the warehouse revealed this problem more than a month before CSHO 

Rambo’s inspection in late October. Thus, Respondent knew or could have known of the condition. 

The Court also finds that Respondent’sfailure to have readily accessible fire extinguishers exposed 

its employees to potential fire hazards. (Tr. 1329–30). Respondent’s Emergency Action Plan 

(EAP) indicates that properly trained employees are expected to use fire extinguishers “if the fire 

can be easily extinguished and you have the proper training.” (Ex. C-78). As noted by Armstrong, 

the first minutes of a fire are critical, and precious time would be wasted in having to remove 

materials and boxes in order to access a fire extinguisher. (Tr. 1329). Insofar as employees are 

expected to participate in putting out minor fires, the Court finds that the failure to have readily 

accessible extinguishers exposed those employees to potential burn injuries. As such, the Court 

finds that Complainant has established a serious violation of the cited standard. Accordingly, 

Citation 1, Item 4 is AFFIRMED as serious.

v. Citation 1, Item 5

Complainant alleged a serious violation of the Act in Citation 1, Item 5 as follows:

29 CFR 1910.212(a)(3)(ii): Point of operation guards were not designed and 

constructed as to prevent the operator from having any part of their body in the 

danger zone during the operating cycle: 

The employer does not ensure point of operation guards are designed and

constructed as to prevent the operator from having any part of their body in the 

danger zone during the operating cycle. This violation was observed on or about 

October 29, 2012, in the pump shop the employer did not ensure a Johnson 

horizontal band saw was provided a guard exposing employees to the hazard of 

contact with the point of operation. 
93

The cited standard provides:

The point of operation of machines whose operation exposes an employee to injury, shall 

be guarded. The guarding device shall be in conformity with any appropriate standards 

therefor, or, in the absence of applicable specific standards, shall be so designed and 

constructed as to prevent the operator from having any part of his body in the danger zone 

during the operating cycle.

29 C.F.R. § 1910.212(a)(3)(ii).

CSHO Rambo identified a horizontal band saw in the warehouse that did not have proper 

guarding to protect against point-of-operation hazards. (Tr. 1395; Ex. C-72 at 21–25). The closeup photographs show two blades that extend lengthwise across the open space of the machine, 

running parallel to the name “JOHNSON” emblazoned across the top. (Ex. 72 at 23–24). As noted 

by Rambo, there is nothing to prevent contact with the blades during operation. (Tr. 1396–97). In 

response to questions about how long the saw had been in the condition observed by Rambo, 

Calvin Foley, who had been the pump shop supervisor for 15 years, stated that it had been that 

way since he had worked there. (Tr. 1398–99). This was echoed by Johnny Reddell, Respondent’s 

maintenance manager. (Id.). 

Respondent contends that Complainant failed to prove that it knew or could have known 

of the condition. Although Armstrong testified that there was a guard that could be removed from 

time to time, he seemed to be somewhat confused as to which guard was being discussed. Initially, 

Armstrong indicated that the saw depicted in Exhibit C-72 was guarded. (Tr. 1334; Ex. C-72 at 

21). In response to questions from the Court, Armstrong testified there was no additional guarding 

that was removed or replaced during the turnaround, and, insofar as he discussed guarding that had 

been removed, he was referring to the green piece of metal with the handle, which is located on 

the left-hand side of the photograph in Exhibit C-72 at 21. (Tr. 1334–35). Later in his testimony, 

Armstrong said that he thought there was a guard in the open area, but he was not “a hundred 

percent sure”. (Tr. 1339). Notwithstanding that testimony, Armstrong admitted that he observed 
94

the saw without the guard, and that the last time he had observed the saw without this purported 

guard “was before the turnaround.” (Tr. 1341). 

The Court finds that Respondent violated the standard and that the violation was serious. 

The saw, as observed by CSHO Rambo, was improperly guarded and exposed its users to pointof-operation hazards, such as lacerations and potential amputations. (Tr. 1396–97). The Court 

finds that the statements given to CSHO Rambo establish that the saw, as illustrated in Exhibit 72, 

was in its normal operating condition, had been in that condition for quite some time, and that such 

condition was known to members of Respondent’s management team. Even if the Court were to 

discount those statements, the Court would still find that Respondent had adequate knowledge of 

the violation based on Armstrong’s testimony that his supervisor’s “should’ve knew” about the 

saw, because they “walk by the saw as much as I do, and if I’ve seen it, then they [sic] seen it.” 

(Tr. 1333). Armstrong testified that the last time he had seen this purported removable guard was 

before the turnaround, which means that many of his supervisors had the opportunity to observe 

the unguarded saw, as it was being used by “[j]ust about everyone in that warehouse . . . .” (Tr. 

1332). Accordingly, Citation 1, Item 5 is AFFIRMED as serious. 

vi. Citation 1, Item 6(a), (b), and (c)

Complainant alleged three serious violations of the Act in Citation 1, Item 6, subparts (a), 

(b), and (c). Given their similarity, both items shall be addressed together. Complainant’s 

allegations with respect to Item 6(a) are as follows:

29 CFR 1910.215(a)(2): Abrasive wheel(s) used on grinding machinery were not 

provided with safety guard(s) which covered the spindle end, nut, and flange 

projections:

The employer does not ensure abrasive wheels used on grinding machinery are 

provided with safety guards which cover the spindle end, nut, and flange 

projections. This violation was observed on or about October 29, 2012, in the pump 

shop the employer did not ensure abrasive wheels on a grinding machine were 
95

provided with safety guards covering the spindle end, nut, and flange projections 

exposing employees to the hazard of caught-by. 

The cited standard provides that “[t]he safety guard shall cover the spindle end, nut, and flange 

projections, The safety guard shall be mounted so as to maintain proper alignment with the wheel, 

and the strength of the fastenings shall exceed the strength of the guard . . . .” 29 C.F.R. § 

1910.215(a)(2).

Complainant’s allegations with respect to Item 6(b) are as follows:

29 CFR 1910.215(b)(9): The distance between the grinding wheel periphery and 

the adjustable tongue or the end of the peripheral member at the top exceeded onefourth inch: 

The employer does not ensure the distance between the grinding wheel periphery 

and the adjustable tongue or the end of the peripheral member at the top exceeded 

one-fourth inch. This violation was observe on or about October 27, 2012, in the 

maintenance shop where the distance between the grinding wheel periphery and the 

adjustable tongue guard on a Baldor bench grinder exceeded one-fourth inch 

exposing employees to the hazard of caught-by and struck-by flying debris resulting 

from an exploding grinding wheel. 

The cited standard provides:

Safety guards . . . where the operator stands in front of the opening, shall be 

constructed so that the peripheral protecting member can be adjusted to the 

constantly decreasing diameter of the wheel. The maximum angular exposure 

above the horizontal plane of the wheel spindle . . . shall never be exceeded, and 

the distance between the wheel periphery and the adjustable tongue or the end of 

the peripheral member at the top shall never exceed one-fourth inch. 

29 C.F.R. § 1910.215(b)(9).

Complainant’s allegations with respect to Item 6(c) are as follows:

29 CFR 1910.215(d)(3): The contact surface(s) of wheel(s), blotter(s) or flange(s) 

on grinding machine(s) were not flat and free of foreign matter: 

The employer does not ensure the contact surfaces of wheels, blotters or flanges on 

grinding machines are flat and free of foreign matter. This violation was observed 

on or about October 27, 2012, in the maintenance shop for a Baldor bench grinder 

where the contact surface of a grinding wheel was not kept flat and smooth 

exposing employees to the hazard of struck-by flying debris from an exploding 

grinding wheel. 
96

The cited standard provides that “[a]ll contact surfaces of wheels, blotters and flanges shall be flat 

and free of foreign matter.” 29 C.F.R. § 1910.215(d)(3).

CSHO Rambo provided ample testimony and evidence to establish a violation of the 

foregoing standards with respect to the bench grinder, much of which was confirmed by Armstrong 

and not contradicted by any other witness. (Tr. 1343). According to Rambo, the grinding wheel: 

(1) did not have adequate guarding to protect against point-of-operation hazards, as well as 

potential shrapnel hazards from a well-worn grinding disc; (2) measured nearly 2.75 inches 

between the wheel and the guard, when the required distance is less than one-quarter inch; and (3) 

was overly worn, full of indentations, and was otherwise unsafe to use. (Tr. 1401–1410; Ex. C-72 

at 26–33). Thus, Respondent violated the terms of the standard. 

Respondent contends, however, that Complainant cannot prove that it knew or could have 

known of the condition. Characterizing Armstrong’s testimony as speculation, Respondent argues 

that Complainant failed to show that any member of management was aware of the condition. 

Similar to his testimony with respect to the band saw, Armstrong stated that members of the 

management team must have seen the condition of the wheel, considering its location in plain 

view, the regularity of its use, and due to the obviously non-compliant condition of the wheel itself. 

(Tr. 1344). The Court has no reason to doubt Armstrong’s assessment, and, in light of the condition 

and size of the grinding wheel itself, it is clear that it had been used in a non-compliant condition 

for long enough for warehouse management to observe it. The Court credits Armstrong’s 

testimony based on his intimate knowledge of the conditions and operations inside Respondent’s 

warehouse. Thus, the Court finds that Respondent knew or, with the exercise of reasonable 

diligence, could have known of the condition. This condition exposed the employees, contractors, 

and managers that used it to point-of-operation hazards and potential struck-by hazards due to the 
97

condition of the grinding wheel itself. Both Rambo and Armstrong testified that these hazards 

could cause serious injury. (Tr. 1403, 1343). 

Based on the foregoing, the Court finds that Complainant established a violation of the 

standard. Accordingly, Citation 1, Items 6(a), (b), and (c) are AFFIRMED as serious violations of 

the Act. 

vii. Citation 1, Item 7

Complainant alleged a serious violation of the Act in Citation 1, Item 7 as follows:

29 CFR 1910.303(g)(1): Sufficient access and working space was not provided and 

maintained about all electric equipment (operating at 600 volts, nominal, or less to 

ground) to permit ready and safe operation and maintenance of such equipment:

The employer does not provide and maintain sufficient access and working space 

about all electric equipment (operating at 600 volts, nominal, or less to ground) to 

permit ready and safe operation and maintenance of such equipment. This violation 

was observed on or about October 27, 2012, in the pump shop where an electrical 

panel was not accessible exposing employees to fire and electrical hazards. 

The cited standard provides:

Sufficient access and working space shall be provided and maintained about all 

electric equipment to permit ready and safe operation and maintenance of such 

equipment. 

29 C.F.R. § 1910.303(g)(1).

Rambo testified that the standard applies, and Respondent does not dispute that assertion. 

(Tr. 1412). The testimony of Rambo and the photographs of the electrical panel show that there 

was an obstruction in front of the panel, including a shelf and cabinet. (Tr. 1412–13; Ex. C-72 at 

35). Respondent contends that Complainant failed to prove that the obstruction, as it were, was 

large enough to block access. Although the cited standard is couched in terms that are 

performance-related, the subsections of 1910.303(g)(1) indicate what constitutes sufficient access 

and working space. See, e.g., 29 C.F.R. § 1910.303(g)(1)(i)(C) (“The work space shall be clear 

and extend from the grade, floor, or platform to the height required by paragraph (g)(1)(vi) of this 
98

section. However, other equipment associated with the electrical installation and located above or 

below the electric equipment may extend not more than 153 mm (6 in.) beyond the front of the 

electric equipment.”). The Court finds that, based on these parameters, the condition of the 

electrical panel violated the terms of the standard. 

The Court also finds that Respondent knew of the condition and that its employees were 

exposed to it. According to CSHO Rambo, both Foley and the electrical supervisor, Eric 

Amparano, were aware of the blocked electrical panel. (Tr. 1414). The Court finds that their 

knowledge is properly imputed to Respondent. Further, the Court credits Rambo’s testimony that 

two individuals working in the pump shop were exposed to potential tripping hazards or even burns 

if employees are not able to access the panel in an emergency. (Tr. 1413). These hazards have the 

potential to cause serious injuries, such as burns, contusions, or broken bones. 

Based on the foregoing, the Court finds that Complainant established a violation of the 

standard and that the violation was serious. Accordingly, Citation 1, Item 7 is AFFIRMED. 

viii. Citation 1, Item 8

Complainant alleged a serious violation of the Act in Citation 1, Item 8 as follows:

29 CFR 1910.305(b)(1)(ii): Unused openings in cabinets, boxes, and fittings, were 

not effectively closed: 

The employer does not ensure unused openings in cabinets, boxes, and fittings are 

effectively closed. This violation was observed on or about October 29, 2012, in 

the maintenance shop where the employer did not ensure that pre-punched 

knockout was effectively closed on an electrical panel exposing employees to fire 

and electrical hazards. 

The cited standard provides:

Unused openings in cabinets, boxes, and fittings shall be effectively closed. 

29 C.F.R. § 1910.305(b)(1)(ii).
99

CSHO Rambo observed an open knockout on the panel box identified in Exhibit C-72. (Ex. 

C-72 at 36). A knockout is an opening to receive electrical lines into the panel box. (Tr. 1415). 

Rambo testified that Amparano, Respondent’s electrical supervisor, told him he had orchestrated 

the removal a cord, which was supposed to provide power to a temporary welder. (Tr. 1416). 

Apparently the cord that was selected was insufficient for the power draw of the welder, so the 

cord was taken off, and the knockout was left open. (Tr. 1416). On cross-examination, Rambo 

testified that Amparano told him that the work of changing the cord was carried out by a contractor. 

(Tr. 1509). Nevertheless, it was still carried out at his direction. (Tr. 1509).

Respondent contends that, due to the fact that the work was performed by a contractor, 

Respondent had no reason to know of the violation. The Court disagrees. Rambo testified that 

Amparano directed the work to remove the cord, which took place around the beginning of the 

turnaround. (Tr. 1416–17). Rambo discovered the condition nearly two months later. (Tr. 1417). 

The electrical panel was located next to the restroom in a well-traveled area. (Tr. 1349). Given 

the location of the condition, the fact that the work to remove the cord was done at the direction 

of one of Respondent’s supervisors, and the length of time that the condition existed, the Court 

finds that Respondent, with the exercise of reasonable diligence, could have known of the 

condition.

Because the condition was in a well-traveled area, the Court also finds that Respondent’s 

employees were exposed to the hazard, which could cause shocks, burns, and potentially 

electrocution. (Tr. 1416). Exposure to such hazards could cause serious injury up to and including 

death. Based on the foregoing, the Court finds that Respondent violated the standard and that the 

violation was serious. Accordingly, Citation 1, Item 8 is AFFIRMED as a serious violation of the 

Act. 
100

ix. Citation 1, Item 9

Complainant alleged a serious violation of the Act in Citation 1, Item 9 as follows:

29 CFR 1910.305(g)(1)(iv)(A): Flexible cords were used as a substitute for fixed 

wiring of a structure: 

The employer does not ensure flexible cords are not used as a substitute for fixed 

wiring of a structure. This violation was observed on or about October 29, 2012, 

in the welding shop where extension cords were used as a substitute for fixed wiring 

exposing employees to electrical hazards. 

The cited standard provides:

Unless specifically permitted otherwise in paragraph (g)(1)(ii) of this section, 

flexible cords and cables may not be used . . . [a]s a substitute for the fixed wiring 

of a structure.

29 C.F.R. § 1910.305(g)(1)(iv)(A).

While in the warehouse, Rambo observed extension cords strung over beams throughout 

the welding shop, including one cord that was wrapped around a metal cable. (Tr. 1417; Ex. C-72 

at 37–40). He discovered that these cords were being used as the primary electrical source for a 

workstation. (Tr. 1417). In addition to being used as a primary power source, Rambo also observed 

the cords being used to “store” equipment, which was hung from the ends of the cords. (Tr. 1419; 

Ex. C-72 at 39–40). Amparano told Rambo that the extension cords had been used like this for 

years and Armstrong testified that they had been like that for “an extended period of time.” (Tr. 

1345, 1420). 

Respondent argues the citation should be dismissed because it alleges, at best, a de minimis

violation of the Act. According to Respondent, there was no proof the alleged violation exposed 

employees to a safety and health risk; in fact, Respondent points out that none of the extension 

cords showed signs of damage. See Resp’t Br. At 76 (citing Dover Elevator, 15 BNA OSHC 1378 

(No. 88-2642, 1991) (“A violation is de minimis when a deviation from the standard has no ‘direct 

or immediate’ relationship to employee safety.”)). The Court disagrees. 
101

In addition to the line quoted by Respondent, the Commission in Dover also stated, 

“[N]ormally, that classification is limited to situations in which the hazard is so trifling that an 

abatement order would not significantly promote the objectives of the Act.” Id. Under the facts of 

this case, the Court is convinced that Complainant has established that the violation in this case 

has a direct and immediate relationship to employee safety and that abatement of the violation will 

promote the objectives of the Act. Not only were the cords draped over steel beams and cables, 

but those same cords were used to suspend equipment, which placed additional strain on the cords. 

The Act illustrates that OSHA has made the determination that such a situation does have a direct 

and immediate relationship to employee safety. See 29 C.F.R. § 1910.303(a)(2)(x) (“Flexible cords 

and cables shall be protected from accidental damage, as might be caused, for example, by sharp 

corners, projections, and doorways or other pinch points.”). Further, Rambo testified that sharp 

edges, such as the metal cable and the beams, coupled with the additional weight imposed by the 

hanging objects, could cause a tear in the cord (or “accidental damage”). (Tr. 1419). If a tear 

occurs, everything that comes into contact with the exposed wiring could be energized, which 

would include the beams and metal cables over which the electrical cords were draped. 

Based on the foregoing, the Court finds that Complainant established a serious violation of 

the cited standard, that Respondent knew of the condition, and that Respondent’s employees were 

exposed to the possibility of shock, burns, or electrocution. Accordingly, Citation 1, Item 9 is 

AFFIRMED as serious.

x. Citation 2, Item 1

Complainant alleged a repeat violation of the Act in Citation 2, Item 1 as follows:

29 CFR 1910.119(h)(2)(iv): The employer did not develop and implement safe 

work practices consistent with 29 CFR 1910.119(f)(4), to control the entrance, 

presence and exit of contract employers and employees in covered process areas:
102

The employer does not develop and implement safe work practices consistent with 

29 CFR 1910.119(f)(4), to control the entrance, presence and exit of contract 

employers and employees in covered process areas. On or about October 25, 2012, 

and at times prior thereto, the employer did not ensure contract employees are 

properly signed in/out process units: 

a) Four (4) JV Industrial Companies employees failed to sign out of Zone 3.

b) Two (2) LOP employees failed to sign out of the FCCU.

c) One (1) Altair Strickland employee failed to sign out of the FCCU.

d) One (1) Total Safety employee, two (2) OSR employees, one (1) Strategic 

Contract Resources employee, and one (1) Wynnewood Refining Company 

employee failed to sign out of the FCCU.

e) On October 20, 2012, seven (7) Scaffolding and Erection Company employees, 

two (2) Strategic Contract Resources employees failed to sign out of the 

Alkylation Unit. 

f) On October 12, 2012, three (3) Koch employees failed to sign out of the SRU 

48002 area in the Alkylation Unit.

The cited standard provides:

The employer shall develop and implement safe work practices consistent with 

paragraph (f)(4) of this section, to control the entrance, presence and exit of contract 

employers and contract employees in covered process areas. 

29 C.F.R. § 1910.119(h)(2)(iv).

As part of his inspection, CSHO Rambo had to sign-in and sign-out of various units within 

the refinery. When he signed in, Rambo took the opportunity to review Respondent’s log books. 

(Tr. 1445–46). His examination of the log books in the Alky Unit, the FCCU, and Zone 3 showed 

24 instances of a contractor or employee failing to sign out of those areas over the course of roughly 

12 days, beginning on October 12, 2012.33 (Tr. 1449; Ex. C-72 at 9–13, C-76). As a result of his 

observations, Complainant issued a citation alleging that Respondent failed to enforce its signin/sign-out policy and, therefore, failed to adequately implement a safe work practice “to control 

the entrance, presence and exit of contractor employers and employees in covered process areas.” 

29 C.F.R. § 1910.119(h)(2)(iv). 

 

33. To clarify, the logs covered a period of approximately 12 days, not CSHO Rambo’s inspection. None of the days 

identified included the day of the Wickes explosion. 
103

Respondent contends that Complainant did not prove that it failed to exercise reasonable 

diligence to ensure that its contractors complied with applicable safe work practices, such as 

signing in and out of covered process areas. In support of this proposition, Respondent points to 

its three-tiered system of signing into and out of process areas, inclusive of its badge process for 

entering the refinery, its log book for process areas, and its safe work permit process. (Tr. 2102, 

2121–23). Respondent also argues that it strictly enforced its sign-in/sign-out policy through 

auditing work practices of contractors, as well as the sign-in/sign-out sheets for each process area. 

As such, Respondent argues that it took all reasonable efforts to discover violations and that 

Complainant failed to prove that it “should have known of even a single instance where a 

contractor failed to sign in or out.” Resp’t Br. at 78. 

The Court agrees with Complainant. It is clear that Respondent had developed and, to a 

certain extent, implemented a system to control the entry into and exit from covered process areas. 

The problem, however, was that the system was ineffective. Respondent contends that 

Complainant failed to prove that it could have known of even a single instance of a contractor 

failing to sign out; however, it also claims that it implemented a strict auditing policy, which 

included reviewing sign-in/sign-out sheets on a daily basis. Resp’t Br. at 77. Based on the log 

books introduced by Complainant, the Court finds that the auditing policy was not as strict as 

Respondent would have it believe. One of the logs showed three contractors that failed to sign out 

of the SRU on October 12, 2012. (Ex. C-76). Other logs show multiple failures to sign out from 

the FCCU, all occurring on the same day, October 25, 2012. (Ex. C-72 at 9–13). If Respondent 

was reviewing the logs and contractor practices as it suggests (and, indeed, as it should have been), 

then it would have been readily aware of its contractors failing to sign out of covered process units. 

While the Court is mindful of the fact that the large number of contractors at the refinery during 
104

the turnaround makes tracking every single one difficult, that only highlights the importance of 

ensuring that entry into process areas is properly controlled. Thus, the Court finds that 

Complainant established a violation of the standard and that Respondent, with the exercise of 

reasonable diligence, could have known of the violation. 

The Court also finds that employees were exposed to potential hazards. According to 

David Johnson, it is important to track the entry into and exit out of process units because “during 

an emergency, the most important thing is to make sure everybody is safe.” (Tr. 2138–39). Rambo 

testified similarly, stating that in the event of an evacuation, first responders (and Wynnewood 

employees) could be exposed to fire and chemical leak hazards if they needed to enter a process 

unit to find a non-present subcontractor employee who simply had not signed out. (Tr. 1449). 

Respondent contends that the violation should not be categorized as serious because the signin/sign-out sheets would not be used in the event of a catastrophic release; employees are instructed 

to immediately leave the unit and gather at designated assembly areas. (Tr. 2123–25). Instead, 

Respondent states that it uses the entry badge data to determine who is on the premises in an 

emergency. The Court finds the standard Respondent violated addresses more than that. 

According to the preamble of the PSM standard, “[T]he objectives of these additional provisions

were to insure that those persons operating high hazard processes are cognizant of any non-routine 

work that is occurring and to insure that those in responsible control of the facility are also in 

control of non-routine work.” (Ex. C-2 at 30). The failure to adequately track contractors and

employees, doing non-routine work in covered process areas not only impacts potential rescue 

efforts, but it also impacts active and future work projects. If it is unclear whether certain nonroutine work projects are occurring in process areas, then subsequent entrants into those areas

cannot adequately assess the hazards associated with working in, energizing, or de-energizing a 
105

particular unit. Without the ability to know with certainty whether individuals are in certain area 

of the refinery, employees and contractors are subjected to any number of hazards that might be 

present, including, as is relevant to a refinery, fire and explosion hazards. Thus, the Court finds 

that the violation was serious.

Based on the foregoing, the Court finds that Respondent violated the standard and that the 

violation was serious. Accordingly, Citation 2, Item 1 is AFFIRMED.

xi. Citation 3, Item 1

Complainant alleged another-than-serious violation of the Act in Citation 1, Item 1 as 

follows:

29 CFR 1910.22(d)(1): In every building or other structure, or part thereof, used 

for mercantile, business, industrial, or storage purposes, the loads approved by the 

building official were not marked on plates of approved design securely affixed by 

the owner of the building, or his duly authorized agent, in a conspicuous place in 

each space to which they are related:

In every building or other structure, or part thereof, used for mercantile, business, 

industrial, or storage purposes, the employer does not ensure the second level 

storage area is designed, constructed, and maintained to support its maximum 

intended load. This violation was observed on or about October 29, 2012, in the 

warehouse the employer did not ensure the second level storage area was designed, 

constructed, and maintained to support its maximum intended load. 

The cited standard provides:

In every building or other structure, or part thereof, used for mercantile, business, 

industrial, or storage purposes, the loads approved by the building official shall be

marked on plates of approved design which shall be supplied and securely affixed 

by the owner of the building, or his duly authorized agent, in a conspicuous place 

in each space to which they relate. Such plates shall not be removed or defaced 

but, if lost, removed, or defaced, shall be replaced by the owner or his agent. 

29 C.F.R. § 1910.22(d)(1).

CSHO Rambo observed a second-level storage area that did not have a posted load rating. 

(Tr. 1422). This area was used for storing gaskets, electrical parts, and shafts, some of which can 

weigh up to 150 pounds. (Tr. 1346; Ex. C-72 at 41–42). According to Rambo, McCaulla told him 
106

that the second-level storage area had never been load-rated, which was echoed by Armstrong, 

who testified that he had never seen a load rating for that area. (Tr. 1348). 

The Court finds that Complainant established a violation of the standard. The evidence 

clearly shows that the second-level storage area did not have a load rating to indicate that it was 

capable of supporting the load of the stored materials. Respondent was clearly aware of this failure, 

as indicated by McCaulla’s statements to Rambo and confirmed by Armstrong’s testimony that 

the storage area had never been rated. The Court also finds that employees, including Armstrong, 

were exposed to the hazard of falling materials and a potentially the collapse of the storage area—

without knowing the load capacity, Respondent could possibly overload the elevated storage area. 

Accordingly, Citation 3, Item 1 is AFFIRMED as an other-than-serious violation of the Act.

V. Penalties

In calculating appropriate penalties for affirmed violations, Section 17(j) of the Act

requires the Commission give due consideration to four criteria: (1) the size of the employer’s 

business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the employer’s 

prior history of violations. Gravity is the primary consideration and is determined by the number 

of employees exposed, the duration of the exposure, the precautions taken against injury, and the 

likelihood of an actual injury. J.A. Jones Construction Co., 15 BNA OSHC 2201 (No. 87-2059, 

1993). It is well established that the Commission and its judges conduct de novo penalty 

determinations and have full discretion to assess penalties based on the facts of each case and the 

applicable statutory criteria. Valdak Corp., 17 BNA OSHC 1135 (No. 93-0239, 1995); Allied 

Structural Steel, 2 BNA OSHC 1457 (No. 1681, 1975).

A. Docket No. 13-0791 – Inspection No. 663538
107

The citation items resulting from this inspection, although they allege violations of 

different standards, all involve the same basic hazard in the same area of the refinery: catastrophic 

releases of highly hazardous chemicals in the start-up and operation of the Wickes boiler. 

Unfortunately, the facts of this case also illustrate the potential gravity of those violations. Two 

of Respondent’s employees died, and many more were exposed to serious injury, as a result of the 

explosion that occurred on September 28, 2012. Further, due to the lack of adequate training, 

procedures, and hazard analysis, Respondent’s employees were exposed to those same hazards 

each time they lit the Wickes. Respondent was aware of previous hard-starts (a colloquial term 

for “mini-explosion”) and failed to adequately address the conditions and procedures that 

contributed to them. Although the Court determined that a repeat characterization was not 

appropriate under the facts of this case, the Court finds that Respondent’s knowledge of previous 

hard-starts, its subsequent failure to address the hazards associated with the process, and the 

potential for serious injury or death provides a sound basis for the highest penalty available for 

serious violations. Thus, the Court will assess a $7,000.00 penalty for each of the following 

violations: Citation 1, Item 1; Citation 1, Items 2(a), (b), and (c); Citation 1, Items 3(a) and (b); 

Citation 1, Item 4 [allegation b]; Citation 1, Items 5(a) and (b); Citation 1, Items 6(a) and (b);

Citation 2, Item 2; Citation 2, Item 3; Citation 2, Item 4; and Citation 2, Item 5 [allegation b].

B. Docket No. 13-0644 – Inspection No. 778042

The citations contained within this docket are sufficiently unique in terms of the violation 

and potential hazard to warrant more individualized discussion. Inasmuch as the citation items are 

similar, the Court shall consolidate its discussion of those items.

With respect to Citation 1, Item 2, the Court finds that the uncapped cylinders have the 

potential to become dangerous projectiles that could cause serious injury to the numerous people 
108

that occupied or otherwise used the warehouse during the turnaround. That said, it appears the 

cylinders were secured, which reduced the likelihood that an accident would occur. In light of 

these facts, the Court finds that a penalty of $3,300.00, as proposed by Complainant, is appropriate. 

With respect to Citation 1, Item 4, it appears that blocked fire extinguishers in the 

warehouse were an ongoing and pervasive problem. CSHO Rambo identified four different 

extinguishers in the warehouse that were blocked, not properly mounted, or both. The Court finds 

that nearly all of the occupants of the warehouse were exposed to a fire hazard, because 

Respondent expected its employees to attempt to put out small fires with the provided fire 

extinguishers. However, considering that Complainant did not identify any imminent fire dangers 

in the warehouse, the Court finds that the likelihood of injury is low. Accordingly, the Court finds 

that a penalty of $3,300.00, as proposed by Complainant, is appropriate. 

With respect to Citation 1, Item 5 and Citation 1, Items 6(a), (b), and (c), the Court finds 

that the hazards associated with each and the gravity of the violations are fairly similar. Each of 

these items deals with point of operation hazards, and the equipment at issue was used by numerous 

employees and contractors throughout the turnaround. Both the saw and the grinder were 

improperly guarded and exposed operators to potential lacerations, amputations, and, in the case 

of the grinder, struck-by injuries due to the worn-down grinding wheel. Given the potential for 

serious injury, and in consideration of the number of people that used the saw and grinder, the 

Court finds that a penalty of $5,500.00 is appropriate for Citation 1, Item 5, and a grouped penalty 

of $5,500.00 is appropriate for Citation 1, Items 6(a), (b), and (c).

With respect to Citation 1, Item 7, the Court finds that the violation was of low gravity. 

While the electric panel was blocked to some extent, it was not completely inaccessible. To be 

sure, when it comes to possible electric shock or electrocution, time is of the essence when it comes 
109

to shutting down circuits; however, considering that the panel was still relatively accessible, the 

Court finds that the violation’s connection to potential injury was fairly attenuated. Accordingly, 

the Court finds that a penalty of $3,000.00 is appropriate. 

With respect to Citation 1, Item 8, the Court finds that employees were exposed to potential 

electric shock, burns, or even electrocution as a result of the open knockout on the side of the 

electrical panel. The panel itself was in a well-traveled area, and the knockout was not properly 

protected. However, even though it was in a well-traveled area, the Court finds it would be 

unlikely that an employee would get close enough to the condition to actually cause injury. 

Accordingly, the Court finds that a penalty of $1,000.00 is appropriate. 

With respect to Citation 1, Item 9, Respondent’s employees were exposed to potential 

burns, shock, and electrocution due to the use of extension cords as a primary power source. There 

was no indication that the hanging cords were damaged in any way; however, given the fact that 

the cords were draped over metal beams and cables and Respondent’s propensity to use those cords 

both as power source and as hanging storage, the Court finds that the potential for serious injury 

was increased. Accordingly, the Court finds that a penalty of $4,400.00 is appropriate. 

With respect to Citation 2, Item 1, the Court finds that a lower penalty is appropriate. When 

viewed in a vacuum, twenty-four instances of contractors and employees failing to sign out of a

process area seems excessive. However, more than 1500 contractors were present at the refinery 

each shift. While the Court agrees with Complainant that such an influx of people on the premises 

heightens Respondent’s responsibility to properly track employees and contractors that are 

potentially exposed to PSM-related hazards, the Court is also mindful of the challenges associated 

with such a large, sudden, workforce increase. In light of that fact, and in consideration of the fact 
110

that Respondent had a badge-entry system that allowed them to track all entrants onto the property 

generally, the Court finds that a penalty of $2,000.00 is appropriate. 

Finally, with respect to Citation 3, Item 1, the Court finds that Respondent’s employees 

were exposed to a hazard due to Respondent’s failure to calculate and post the load rating for the 

second-level storage area. Without knowing the load capacity, Respondent’s employees could 

have been exposed to a collapse of the structure due to overloading. However, in light of the fact 

that Complainant characterized this citation item as other-than-serious, the Court finds that its 

proposed penalty of $1,000.00 is appropriate. 

VI. Order

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED

that:

A. Docket No. 13-0791 – Inspection No. 663538

1. Citation 1, Item 1 is AFFIRMED, and a penalty of $7,000.00 is ASSESSED.

2. Citation 1, Items 2(a), (b), and (c) are AFFIRMED, and a grouped penalty of $7,000.00 is 

ASSESSED.

3. Citation 1, Items 3(a) and (b) are AFFIRMED, and a penalty of $7,000.00 is ASSESSED.

4. Citation 1, Item 4 [allegation (b)] is AFFIRMED, and a penalty of $7,000.00 is 

ASSESSED.

5. Citation 1, Items 5(a) and (b) are AFFIRMED, and a penalty of $7,000 is ASSESSED.

6. Citation 1, Items 6(a) and (b) are AFFIRMED, and a penalty of $7,000 is ASSESSED.

7. Citation 2, Item 1 is VACATED.

8. Citation 2, Item 2 is AMENDED to a serious violation, AFFIRMED as amended, and a 

penalty of $7,000.00 is ASSESSED.
111

9. Citation 2, Item 3 is AMENDED to a serious violation, AFFIRMED as amended, and a 

penalty of $7,000.00 is ASSESSED.

10. Citation 2, Item 4 is AMENDED to a serious violation, AFFIRMED as amended, and a 

penalty of $7,000.00 is ASSESSED.

11. Citation 2, Item 5 [allegation (b)] is AMENDED to a serious violation, AFFIRMED as 

amended, and a penalty of $7,000.00 is ASSESSED.

12. Citation 3, Item 1 is VACATED.

B. Docket No. 13-0644 – Inspection No. 778042

1. Citation 1, Item 1 is VACATED.

2. Citation 1, Item 2 is AFFIRMED, and a penalty of $3,300.00 is ASSESSED.

3. Citation 1, Item 3 is VACATED.

4. Citation 1, Item 4 is AFFIRMED, and a penalty of $3,300.00 is ASSESSED.

5. Citation 1, Item 5 is AFFIRMED, and a penalty of $5,500.00 is ASSESSED.

6. Citation 1, Items 6(a), (b), and (c) are AFFIRMED, and a grouped penalty of $5,500.00 is 

ASSESSED.

7. Citation 1, Item 7 is AFFIRMED, and a penalty of $3,000.00 is ASSESSED.

8. Citation 1, Item 8 is AFFIRMED, and a penalty of $1,000.00 is ASSESSED.

9. Citation 1, Item 9 is AFFIRMED, and a penalty of $4,400.00 is ASSESSED.

10. Citation 2, Item 1 is AMENDED to a serious violation, AFFIRMED as amended, and a 

penalty of $2,000.00 is ASSESSED.

11. Citation 3, Item 1 is AFFIRMED, and a penalty of $1,000 is ASSESSED.

/s/Brian A. Duncan 

Date: February 5, 2016 Judge Brian A. Duncan
112

Denver, Colorado U.S. Occupational Safety and Health Review Commission