OSHRC Dramatically Expands Interpretation of “Interconnected” for PSM-Coverage

By Eric J. Conn and Micah Smith

On March 28, 2019, the OSH Review Commission released its decision in Sec’y of Labor v. Wynnewood Refining, OSHRC, Nos. 13-0644 & 13-0791.  In a fairly brief opinion, the Commission affirmed the decision of the ALJ on two significant issues:

  1. the PSM standard applied to a utilities boiler; and
  2. OSHA inappropriately relied upon the citation history of a prior owner in characterizing citations as Repeat.

Expanding PSM Coverage

With regard to PSM applicability, the decision is framed as a response to the arguments raised in the refinery’s brief, but it does not directly address the arguments raised by the amicus brief filed by AFPM and API.  The Commission began its discussion of PSM applicability by evaluating the meaning of the definition of “process,” in particular how to interpret this phrase:

“For purposes of this definition, any group of vessels which are interconnected and separate vessels which are located such that a highly hazardous chemical (HHC) could be involved in a potential release shall be considered a single process.”

The Commission held that, in order to prove a group of vessels qualify as a process, OSHA may prove either that a) the group of vessels are interconnected or b) separate vessels are located such that an HHC could be involved in a potential release.  With surprisingly little analysis, the Commission held that this was the plain meaning of the terms of the standard, and the Commission did not evaluate at all whether OSHA’s interpretation deserved deference.  (Note:  Chairwoman MacDougall disagreed that this was the plain meaning of the terms, but she agreed that OSHA’s interpretation of the definition deserved deference.)

This decision gave no credence to the arguments made by the refinery and the amici, which both urged the Commission to find that interconnected vessels be considered a single process only if there is a reasonable probability that an event such as an explosion would affect the interconnected vessels. Continue reading

D.C. Circuit’s “Inadvertently Issued” Mandate puts RMP Amendments into Effect for a Weekend

By Eric Conn, Micah Smith, and Beeta Lashkari

Late last Friday, August 31, 2018, the D.C. Circuit unexpectedly granted Petitioners’ request to expedite the issuance of the Court’s mandate to strike down the delay of EPA’s 2017 RMP Amendments.  RMP DecisionAs we previously reported, the D.C. Circuit held on August 17, 2018, that EPA acted improperly when it issued a final rule delaying the effective date of a certain set of amendments made to EPA’s RMP Rule (the “Delay Rule”).  Providing for a full rehearing petition period, and absent any action from the Court, the mandate for this decision would have issued at the earliest on October 8, 2017.  On August 24, 2018, however, Petitioners filed a motion to expedite, asking that it issue no later than September 7, 2018.

Petitioners’ arguments focus on the public’s “strong interest” in the prompt issuance of the mandate due to “the serious and irreparable harm and imminent threats to public health and safety that EPA’s Delay Rule is causing,” and they point to the 14 months of delay that has already occurred as evidence of the need for expedited relief.

And in a nod to current events, Petitioners claim that time is now of the essence because of the impending hurricane season, specifically mentioning the OIG’s investigation of EPA’s preparedness and response efforts to Hurricane Harvey in 2017.

Under the Federal Rules of Appellate Procedure, EPA and the Intervenors are afforded 10 days to file oppositions to Petitioners’ Motion, so those oppositions had not yet been filed on August 31.

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After the Court issued the mandate late on Friday, August 31, several motions for reconsideration were filed by EPA and Intervenors, but the Court’s closure over the 3-day weekend left all the parties in suspense, anxiously trying to determine the implications of the decision.

After a long weekend of suspense, the Court ordered EPA to return the mandate on September 4, noting that the responses to Petitioners’ Motion were not yet due.  The Court also briefly noted that it appeared “that the court’s mandate inadvertently issued” the previous Friday.  EPA returned the mandate on the same day.

But now that EPA and the Intervenors have filed oppositions to Petitioners’ Motion to expedite the issuance of the mandate, what comes next?  Continue reading