Delek Refining, Ltd. v. Occupational Safety & Health Review Commission

Case: 15-60443 Document: 00513815691 Page: 1 Date Filed: 12/29/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 15-60443 FILED
December 29, 2016
Lyle W. Cayce
DELEK REFINING, LIMITED, Clerk

Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
THOMAS E. PEREZ, SECRETARY, DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order of the
Occupational Safety and Health Review Commission

Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Delek Refining, Limited purchased an oil refinery in Tyler, Texas from
Crown Central. After the transfer in ownership, the Occupational Safety and
Health Administration conducted an inspection and issued a citation for
violations of its process safety management rules, which govern an employer’s
responsibility to inspect, and to develop inspection and recording regimes for,
machinery that handles large volumes of hazardous chemicals. Because we
conclude that the citations for Items 4 and 12 are barred by the six-month
statute of limitations in 29 U.S.C. § 658(c), we VACATE the citations for those
items. Because we also conclude that the regulations relevant to the citation
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for Item 8 are ambiguous and the Secretary’s interpretation is reasonable, we
AFFIRM the citation for Item 8.
I.
Delek purchased an oil refinery located in Tyler, Texas from Crown
Central and took possession on April 29, 2005. Beginning in February 2008,
the Occupational Safety and Health Administration conducted a four-month
inspection of the refinery and issued a citation on August 18, 2008, finding
violations of 29 C.F.R. § 1910.119—an OSHA regulation governing “Process
Safety Management of Highly Hazardous Chemicals”—and other regulations
that are not at issue here. Section 1910.119 imposes a series of requirements
on employers which are intended, according to that section’s purpose
statement, to “prevent[ ] or minimiz[e] the consequences of catastrophic
releases of toxic, reactive, flammable, or explosive chemicals . . . [that] may
result in toxic, fire or explosion hazards.” Id.
Delek petitions for review of citation Items 4, 8, and 12. Item 4 alleges a
failure to resolve open findings and recommendations identified during process
hazard analyses that occurred in 1994, 1998, 1999, 2004, and 2005—prior to
Delek purchasing and taking possession of the refinery. 1 Item 8 alleges an

1 The regulations underlying the citation for Item 4 provide:

(5) The employer shall establish a system to promptly address the team’s
findings and recommendations; assure that the recommendations are resolved
in a timely manner and that the resolution is documented; document what
actions are to be taken; complete actions as soon as possible; develop a written
schedule of when these actions are to be completed; communicate the actions
to operating, maintenance and other employees whose work assignments are
in the process and who may be affected by the recommendations or actions.
(6) At least every five (5) years after the completion of the initial process hazard
analysis, the process hazard analysis shall be updated and revalidated by a
team meeting the requirements in paragraph (e)(4) of this section, to assure
that the process hazard analysis is consistent with the current process.
(7) Employers shall retain process hazards analyses and updates or
revalidations for each process covered by this section, as well as the
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inadequate monitoring and inspection regime for certain equipment involved
in process safety management. 2 Specifically, the Secretary alleges that Delek
failed to inspect a positive pressurization unit, which pressurizes the control
room for the fluid catalytic cracking unit and detects the presence of hazardous
vapors. Item 12 alleges that Delek failed to determine and document a
response to the findings of a 2005 compliance audit in a timely manner. 3 As
with Item 4, the audit at issue in Item 12 was conducted before Delek took
possession of the refinery.
The Secretary of Labor brought an enforcement action against Delek for
these and other violations. The administrative law judge affirmed seven of the

documented resolution of recommendations described in paragraph (e)(5) of
this section for the life of the process.
29 C.F.R. § 1910.119(e)(5)–(7).

2 The regulations underlying the citation for Item 8 provide:

(1) Application. Paragraphs (j)(2) through (j)(6) of this section apply to the
following process equipment: (i) Pressure vessels and storage tanks; (ii) Piping
systems (including piping components such as valves); (iii) Relief and vent
systems and devices; (iv) Emergency shutdown systems; (v) Controls (including
monitoring devices and sensors, alarms, and interlocks) and, (vi) Pumps. . . .
(4) Inspection and testing. (i) Inspections and tests shall be performed on
process equipment.
29 C.F.R. § 1910.119(j)(1), (4).

3 The regulations underlying the citation for Item 12 provide:

(1) Employers shall certify that they have evaluated compliance with the
provisions of this section at least every three years to verify that the procedures
and practices developed under the standard are adequate and are being
followed.
(2) The compliance audit shall be conducted by at least one person
knowledgeable in the process.
(3) A report of the findings of the audit shall be developed.
(4) The employer shall promptly determine and document an appropriate
response to each of the findings of the compliance audit, and document that
deficiencies have been corrected.
(5) Employers shall retain the two (2) most recent compliance audit reports.
29 C.F.R. § 1910.119(o).
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violations with penalties totaling $32,850. Secretary of Labor v. Delek, 2011
WL 12709990 (OSHA Apr. 27, 2011) (Delek I). 4 Delek appealed six of the seven
violations to the Occupational Safety and Health Review Commission (OSHRC
or Commission). 5 The Commission unanimously vacated two violations and
upheld a third. Secretary of Labor v. Delek, 2015 WL 1957889 (OSHRC Apr.
23, 2015) (Delek II). In a 2-1 split decision, the Commission also upheld the
three remaining violations; Commissioner MacDougall dissented from the
Commission’s decision affirming these three violations. Id. at *16–27. The final
three violations, each carrying a penalty of $6,300, are the subject of this
appeal.
II.
We review the Commission’s factual findings to determine whether they
are supported by substantial evidence in the record considered as a whole.
MICA Corp. v. OSHRC, 295 F.3d 447, 449 (5th Cir. 2002). We review the
Commission’s legal conclusions to determine whether they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.”
Trinity Marine Nashville, Inc. v. OSHRC, 275 F.3d 423, 427 (5th Cir. 2001); 5
U.S.C. § 706(2)(A).
We will defer to the agency’s interpretation of its own organic statute
only if the text is ambiguous and the agency’s interpretation is reasonable.
Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984);

4 Though the ALJ affirmed the citation for Item 4, it did so only after deleting the
allegations related “to the PHA team’s findings and recommendations from 1998 and 2005.”
Delek I, 2011 WL 12709990, at *33.

5 The Occupational Safety and Health Act divides administrative actions between the
Secretary of Labor and the Occupational Safety and Health Review Commission. The
Secretary has the responsibility of promulgating standards through rulemaking and bringing
enforcement actions against employers. The Commission adjudicates appeals after an initial
hearing before an administrative law judge. Martin v. OSHRC, 499 U.S. 144, 147–48 (1991).
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Lari v. Holder, 697 F.3d 273, 278 (5th Cir. 2012). We will consider all the
“traditional tools of statutory construction” before concluding that a statute is
ambiguous. Contender Farms, LLP v. U.S. Dep’t of Agric., 779 F.3d 258, 269
(5th Cir. 2015). If we determine that the text is clear, we owe no deference to
the agency’s interpretation. City of Arlington v. FCC, 133 S. Ct. 1863, 1874
(2013) (“Where Congress has established a clear line, the agency cannot go
beyond it[.]”); Lari, 697 F.3d at 278. If, however, we determine that the text is
ambiguous, we will defer to the agency’s reasonable interpretation. Lari, 697
F.3d at 278. Likewise, we will defer to an agency’s reasonable interpretation of
its own regulations when the text of the regulation is ambiguous. Christensen
v. Harris Cty., 529 U.S. 576, 588 (2000). “In situations in which the meaning
of regulatory language is not free from doubt, the reviewing court should give
effect to the agency’s interpretation so long as it is reasonable,” and it “sensibly
conforms to the purpose and wording of the regulations.” Martin, 499 U.S. at
150–51 (alterations omitted). If the regulation is clear, we will not defer.
Christensen, 529 U.S. at 588; see also Moore v. Hannon Food Serv., Inc., 317
F.3d 489, 495–96 (5th Cir. 2003).
III.
A.
We first consider Delek’s challenge to the citations for Items 4 and 12.
Items 4 and 12 relate to the process hazard analysis (PHA) and compliance
audits required by Section 1910.119. That provision requires an employer to
update and revalidate a PHA every five years. 29 C.F.R. § 1910.119(e)(6). A
PHA requires the full-time labor of five to twelve skilled engineers and
managers and generally takes four to six weeks. A PHA must “identify,
evaluate, and control the hazards involved in the process.” 29 C.F.R.
§ 1910.119(e)(1). After a PHA is completed, the employer must, inter alia,
“establish a system to promptly address” its findings, assure their timely
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resolution, and document the manner in which they were resolved. Id.
§ 1910.119(e)(5). Similarly, Section 1910.119 requires an employer to complete
a compliance audit at least every three years. Id. § 1910.119(o)(1). The
compliance audit “verif[ies] that the procedures and practices developed under
the standard are adequate and are being followed.” Id. A compliance audit
requires the efforts of eight to ten skilled employees and can take up to a week
to perform. An employer must create a report after the audit and “promptly
determine and document an appropriate response to each of the findings of the
compliance audit, and document that deficiencies have been corrected.” Id.
§ 1910.119(o)(3), (4). The employer must retain the records from its two most
recent compliance audits. Id. § 1910.119(o)(5).
Delek argues that the citations for Items 4 and 12 are barred by the
statute of limitations in 29 U.S.C. § 658(c). That section provides that “[n]o
citation may be issued under this section after the expiration of six months
following the occurrence of any violation.” 29 U.S.C. § 658(c). According to
Delek, because the PHAs and the audit at the root of Items 4 and 12 took place
in 1994, 1998, 1999, 2004, and 2005, the Secretary’s 2008 citations are outside
the six-month statute of limitations. 6

6 Delek also argues that the citations for Items 4 and 12 must be vacated because the
violations underlying those Items were committed by Crown Central. According to Delek,
Section 1910.119 does not authorize successor liability. Delek further argues that, even if
Section 1910.119 does impose successor liability, the citations for Items 4 and 12 must still
be vacated because the Commission did not undertake a successor liability analysis. By
contrast, the Secretary contends that the successor liability doctrine is not implicated
because Delek was cited for its own failure to resolve open PHA and audit findings after it
purchased the plant from Crown Central. The Secretary also argues that Section 1910.119’s
mandate is focused on the “process,” rather than a particular employer, and so Section
1910.119’s requirements survive a change of ownership. Finally, the Secretary contends that
Section 1910.119 is ambiguous and can reasonably be read to authorize successor liability.
Because we vacate the citations for Items 4 and 12 based on Section 658(c)’s statute of
limitations, we do not reach the successor liability issue.
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Delek relies heavily on a decision by one of our sister circuits—AKM LLC
dba Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012)—
to support its statute of limitations argument. That case involved a set of
citations issued by OSHA for violations of rules created under 29 U.S.C.
§ 657(c). Id. at 755. Those rules required employers to “make, keep, and
preserve” records of workplace injuries within a designated timeframe. 29
U.S.C. § 657(c)(1). Volks was cited in November 2006 for its failure to create
and maintain such records between 2002 and early 2006. Volks, 675 F.3d at
753. The company argued that Section 658(c)’s six-month limitations period
began to run when the violation occurred (i.e., when the prescribed deadline
for creating the records had run) and that the citations were issued more than
six months after this time. Id. at 753. The Secretary, by contrast, argued that
Volks’ failure to create the required records was a continuing violation of the
regulations, such that the six-month period began anew each day until the
close of the five-year period for which employers are required to keep records.
Id. at 755.
The D.C. Circuit rejected the Secretary’s continuing violations theory.
Id. at 755–59. In particular, the court concluded that such a theory was
inconsistent with the text of Section 658(c), which identifies an “occurrence” as
the trigger for the statute of limitations. Id. at 755–56. According to the court,
an “occurrence” “clearly refers to a discrete antecedent event—something that
‘happened’ or ‘came to pass’ ‘in the past.’” Id. at 755 (quoting Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109–10 & n.5 (2002)). The Secretary’s
continuing violations argument was inconsistent with this understanding of
an “occurrence” because the nature of a continuing violation is that it is
ongoing—not a discrete, past event. Id.

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Though we are not bound by the Volks decision, we find its reasoning
persuasive. 7 Section 1910.119 requires an employer to “establish a system to
promptly address the [PHA] team’s findings and recommendations,” to “assure
that the recommendations are resolved in a timely manner,” and to “promptly
determine and document an appropriate response to each of the findings of the
compliance audit . . . .” 29 C.F.R. § 1910.119(e)(5), (o)(4). Just as a single
violation “occurr[ed]” in Volks when the company failed to create the records
within the prescribed time-period, so too a violation of subsections (e)(5) and
(o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does
not “promptly” or “timely” do as Section 1910.119 directs. 8
The Secretary reasserts here the “continuing violations” theory made in
Volks, arguing that Delek’s failure to address the findings or recommendations
at issue in Items 4 and 12 is a “continuing violation” and so Section 658(c)’s
statute of limitations never began to run on those citations because they were
never abated. We cannot accept this argument. To begin with, we note that
applying a continuing violations theory in this case would conflict with the
basic purposes of a statutory limitations period. “The general working
presumption in federal civil and criminal cases is that a federal civil cause of
action or criminal offense must have some statute of limitations and must not

7 The Secretary argues that Volks only purported to apply to violations of record-
making regulations promulgated under 29 C.F.R. Part 1904. This reading is implausible.
While Volks certainly involved a violation of a record-making regulation, nothing in the
majority opinion purports to limit its reach to Part 1904 record-making regulations.

8 The Secretary has, on at least one occasion, taken the position that a response to
PHA and audit recommendations is “timely” when it is done within “one to two years.” See
Secretary of Labor v. BP Prods. N. Am., Inc., 2013 WL 9850777, at *37 (OSHRC Aug. 12,
2013). We need not address this issue here, however, because the Secretary has not argued
that the citations underlying Items 4 and 12 would be timely under the interpretation of
Section 658(c) we now adopt, even if Section 1910.119’s references to “timely” or “prompt”
action afforded an employer more than one or two years to resolve open PHA or audit
recommendations.
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allow suits to be brought forever and ever after the acts in question.” PHH
Corp. v. Consumer Fin. Prot. Bureau, 839 F.3d 1, 50 (D.C. Cir. 2016); id. (“As
Chief Justice Marshall stated, allowing parties to sue ‘at any distance of time’
would be ‘utterly repugnant to the genius of our laws. In a country where not
even treason can be prosecuted after a lapse of three years, it could scarcely be
supposed that an individual would remain forever liable to a pecuniary
forfeiture.’” (quoting Adams v. Woods, 6 U.S. 336, 342 (1805))). The purpose of
a statute of limitations is to “provide ‘security and stability to human affairs,’”
Gabelli v. SEC, 133 S. Ct. 1216, 1221 (2013) (quoting Wood v. Carpenter, 101
U.S. 135, 139 (1879)), by promoting the “elimination of stale claims, and
[promoting] certainty about a plaintiff’s opportunity for recovery and a
defendant’s potential liabilities.” Gabelli, 133 S. Ct. at 1221 (quoting Rotella v.
Wood, 528 U.S. 549, 555 (2000)).
The Secretary’s proposed reading of Section 658(c) is, at best, in tension
with these policies. Under the Secretary’s theory, OSHA would have authority
to penalize an employer for failing to “promptly” or “timely” address PHA or
audit recommendations or findings that arose twenty or more years prior—
which is exactly what would occur in this case were we to accept the Secretary’s
position. And as the Secretary has candidly acknowledged, his interpretation
would authorize citations for unaddressed PHA or audit recommendations ad
infinitum.
At the same time, the Secretary’s reading of Section 658(c)—one that
allows for citations decades after the “occurrence” of a violation—is at odds
with the six-month limitations period in Section 658(c)’s text. Accepting the
Secretary’s reading would effectively nullify the six-month limitations period
that Congress deliberately wrote into Section 658(c) and thereby render that
language meaningless in many cases. Our precedents, however, have
repeatedly cautioned against interpreting statutes in such a manner if at all
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possible. See, e.g., United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972) (“[W]ords in statutes should not be discarded as ‘meaningless’ and
‘surplusage’ when Congress specifically and expressly included them . . . .”);
accord Volks, 675 F.3d at 756 (“[W]e must be ‘hesitant to adopt an
interpretation of a congressional enactment which renders superfluous
another portion of that same law.’” (quoting United States v. Jicarilla Apache
Nation, 564 U.S. 162, 185 (2011))).
It is true that Volks left open the possibility that Section 658(c)’s statute
of limitations “could be extended by the continuing violations concept” and
identified safety violations as a possible candidate for the continuing violations
theory. Volks, 675 F.3d at 758 (“Of course, where, for example a company
continues to subject its employees to unsafe machines, or continues to send its
employees into dangerous situations without appropriate training, OSHA may
be able to toll the statute of limitations on a continuing violations theory since
the dangers created by the violations persist.” (internal citations omitted)). The
Secretary argues strenuously that the continuing violations theory applies to
the directives in subsections (e)(5) and (o)(4).
We, like the Volks court, do not decide whether OSHA may be able to use
the continuing violations theory to toll Section 658(c)’s statute of limitations in
cases involving continuing, unlawful risks to employee health and safety. Here,
neither Section 1910.119(e)(5) nor (o)(4) mandates that the employer actually
remedy the issues addressed in a PHA or audit recommendation. See 29 C.F.R.
§ 1910.119(e)(5), (o)(4). Subsection (e)(5) directs the employer to “address” the
findings from a PHA and to “resolve[ ]” them in a timely manner. Likewise,
subsection (o)(4) directs employers to “determine and document an appropriate
response” to the audit compliance findings. As the Secretary acknowledges in
his brief, “[a] PHA finding or recommendation is ‘resolved’ when the employer
has adopted the item or has justifiably declined to do so.” Secretary Br. at 5 n.2
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(emphasis added); see also id. at 34 (“Delek might have evaluated the findings
and determined that they were not valid . . . .”); id. at 41–42 (“OSHA
compliance guidance provides that an employer may justifiably decline to adopt
a PHA finding or recommendation. Similarly, the cited audit report provision,
29 C.F.R. § 1910.119(o)(4), says that the employer may determine an
appropriate response to each audit finding. Thus, employers have discretion to
reject items that they consider unmerited.” (citation omitted) (second emphasis
in original)). And at oral argument, the Secretary acknowledged that “under
the cited standards, the employer has the option of deciding that no resolution
is necessary.” Oral Argument at 20:52–60, Delek Refining Ltd. v. OSHRC, No.
15-60443 (emphasis added); id. at 35:27–38 (“The provision gives the employer
the option of deciding once . . . audit or PHA findings and recommendations
are made of saying, ‘Well, we don’t have to do anything further.’”). 9
In other words, while a PHA or audit might result in a
recommendation—even a safety-related recommendation—an employer is
under no obligation to actually implement that recommendation. This
structure is quite unlike a safety regulation which commands the employer to
actually remedy a safety hazard and maintain a workplace free of such
hazards, and it distinguishes subsections (e)(5) and (o)(4) from the type of
safety-related regulation for which a continuing violations theory might be
appropriate. Accordingly, we cannot agree with the Secretary that the
continuing violations theory applies here. 10

In the ALJ’s opinion, each of the “open” items related to Item 4 are described as
9

“recommendation[s].” Delek I, 2011 WL 12709990, at *4–5.

10 We emphasize that in rejecting this argument, we, like the D.C. Circuit, “express
no opinion on whether some other violations, if any, could, for some other reason, be extended
by the continuing violations concept.” Volks, 675 F.3d at 758. We conclude only that, in light
of the text of Section 658(c) as applied to the relevant portions of Section 1910.119(e) and (o),
the continuing violations theory is not applicable.
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We conclude, as did the D.C. Circuit, that Section 658(c) is clear, and so
we do not defer to the Secretary’s interpretation. See Volks, 675 F.3d at 755,
759. Accordingly, we hold that Section 658(c)’s six-month statute of limitations
bars the citations for Items 4 and 12. We therefore vacate those citations.
B.
The Secretary also cited Delek under Item 8 for failing to inspect a piece
of equipment known as the positive pressurization unit (PPU). Delek contends
that this citation is unlawful because the PPU is not encompassed by the
relevant regulations. Because this dispute involves the interpretation of a
binding regulation promulgated by the agency, we defer to the agency’s
interpretation if the text is ambiguous and the agency’s interpretation is
reasonable. Christensen, 529 U.S. at 588. Because we conclude that the
relevant portions of Section 1910.119 are ambiguous and the Secretary’s
interpretation is reasonable, we AFFIRM the citation for Item 8.
Delek’s refinery contains a fluid catalytic cracking unit (FCCU). The
process of fluid catalytic cracking involves “converting crude oil into usable
fuels, such as gasoline, by a process that could release hazardous vapors.”
Delek II, 2015 WL 1957889, at *7. This process is managed by Delek employees
from the FCCU control room. Id. The PPU is located in the FCCU control room,
and “consists of an intake stack that draws in outside air and a fan that pulls
the air into the control room.” Delek I, 2011 WL 12709990, at *10. In so doing,
the PPU maintains “positive pressure” inside the FCCU control room, thereby

Nor does our decision cast doubt upon the application of the discovery rule to Section
658(c). See, e.g., Austin Indus. Specialty Servs., L.P. v. OSHRC, 765 F.3d 434, 442 (5th Cir.
2014). The rule states that “OSHA may cite a party for an uncorrected violation of applicable
regulations within six months from the time that OSHA discovers, or should have discovered,
the facts establishing the violation.” Id. at 442. The Secretary here did not raise the discovery
rule to justify the timing of the citations underlying Items 4 and 12.
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“keep[ing] harmful or hazardous vapors from entering the control room.” 11 Id.
at *9, *10 (quotation marks omitted). Without the PPU, hazardous vapors
could enter the FCCU control room and harm Delek employees managing the
fluid catalytic cracking process or react with wiring in the control room to cause
a catastrophic explosion. Delek II, 2015 WL 1957889, at *7; Delek I, 2011 WL
12709990, at *15. The PPU also contains two sensors. One detects whether the
FCCU control room is pressurized and triggers an alarm that indicates when
it is not. Delek I, 2011 WL 12709990, at *10; Delek II, 2015 WL 1957889, at *7.
The other detects the presence of combustible gas and will shut down the
intake stack to prevent the gas from entering the control room if such gas is
detected. 12 Id.
The parties do not dispute where the PPU is located, what it consists of,
or what it does. They instead dispute whether the PPU is subject to the
inspection requirements of 29 C.F.R. § 1910.119(j). Section 1910.119 applies to
“a process which involves a Category 1 flammable gas” and further defines
“process” 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.” 29 C.F.R. § 1910.119(a)(1)(ii),
(b). Section 1910.119(j) requires employers to “establish and implement
written procedures to maintain the on-going integrity of process equipment”
and to perform “[i]nspections and tests . . . on process equipment.” Id.
§ 1910.119(j)(2), (4)(i). Section 1910.119(j), in turn, defines “process
equipment” as “the following”: “(i) Pressure vessels and storage tanks; (ii)
Piping systems (including piping components such as valves); (iii) Relief and

11 Delek’s own “Mechanical Integrity Manual” describes the purpose of “control room
pressurization” as “keeping harmful or hazardous vapors from entering.”

12 As the ALJ noted, several Delek employees testified that the PPU serves an
important safety function. See Delek I, 2011 WL 12709990, at *11, *13.
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vent systems and devices; (iv) Emergency shutdown systems; (v) Controls
(including monitoring devices and sensors, alarms, and interlocks) and, (vi)
Pumps.” Id. § 1910.119(j)(1)(i)–(vi).
The Secretary argues that the PPU is subject to Section 1910.119(j)’s
inspection regime because: (1) the PPU is an integral part of the FCCU, which
is a “process” under Section 1910.119(b); and (2) the PPU is “process
equipment” under Section 1910.119(j). We will address these issues in turn.
1.
The Commission concluded that the PPU fits within Section
1910.119(b)’s definition of “process” because “the PPU is an integral part of the
overall [FCCU] ‘process.’” Delek II, 2015 WL 1957889, at *7. On appeal, the
Secretary urges us to accept this determination. While both parties agree that
the FCCU is a “process” within the meaning of Section 1910.119(b), they
dispute whether the PPU is a part of the FCCU process.
We conclude, based on the undisputed facts as to the PPU’s function,
that the Commission reasonably determined that the PPU is part of the overall
FCCU “process” and is therefore covered by Section 1910.119(b). As the
Commission indicated, the PPU serves an important function vis-à-vis the
fluid catalytic cracking process by ensuring maintenance of positive air
pressure within the FCCU control room and thereby preventing the flow of
hazardous chemicals or vapors into the control room. In so doing, the PPU
protects the Delek employees within the FCCU control room who are managing
the fluid catalytic cracking process, and, in turn, plays a role in protecting the
integrity of that process. Further, by preventing the flow of hazardous
chemicals into the FCCU, the PPU prevents hazardous vapors from interacting
with the wiring in the FCCU and potentially causing an explosion. In short,
the PPU does far more than serve as a mere ventilation system; it plays an

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important part in ensuring the integrity of the fluid catalytic cracking process
itself.
Delek argues, however, that the PPU cannot be part of a “process”
because it does not fit within the definition of “process” in 29 C.F.R.
§ 1910.119(b). Specifically, Delek contends in its briefing that the activities
listed in the definition of process—“use, storage, manufacturing, handling, or
[ ] on-site movement”—show that a “process” is limited to the “containment of
the highly hazardous chemical and the actual manufacturing of a product.” As
Delek correctly notes, the PPU does not contain any highly hazardous
chemicals, nor does it use, store, manufacture or handle such chemicals—at
least not in the ordinary sense of those terms. Cf. 29 C.F.R. § 1910.119(b).
However, the Commission did not conclude—and the Secretary does not
argue on appeal—that the PPU itself is a “process.” As noted, the Commission
concluded that “the PPU is an integral part of the overall FCC unit ‘process.’”
Delek II, 2015 WL 1957889, at *7 (emphasis added). As a result, the PPU need
not independently constitute a “process” under Section 1910.119(b). But in any
event, to the extent Section 1910.119(b)’s definition is pertinent to defining the
parameters of a covered “process,” we do not agree that Section 1910.119(b)’s
definition necessarily excludes the PPU. Section 1910.119(b) defines “process”
broadly to encompass “any activity involving a highly hazardous chemical
including any use, storage, manufacturing, handling, or the on-site movement
of such chemicals . . . .” 29 C.F.R. § 1910.119(b) (emphasis added). It is
undisputed that the PPU operates to detect the presence of highly hazardous
chemicals and gases and to prevent them from entering the FCCU. In
performing this “activity,” the PPU undoubtedly “involv[es]” the very
chemicals and gases that it detects and prevents from entering the FCCU
control room.

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No. 15-60443
Delek argues, however, that the PPU does not fit within any of the
specific activities listed in the definition of “process”—“use, storage,
manufacturing, handling, or . . . on-site movement” of such chemicals. 29
C.F.R. § 1910.119(b). But the use of the term “including” within Section
1910.119(b)’s definition indicates that these forms of “involv[ement]” with
highly hazardous chemicals are not an exhaustive listing. See ANTONIN SCALIA
& BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 132
(Thomas/West 2012) (“[T]he word include does not ordinarily introduce an
exhaustive list . . . .”). Thus, even assuming that the PPU’s involvement with
highly hazardous chemicals does not fit within one of the examples listed in
Section 1910.119(b), that fact would not clearly exclude the PPU from the
definition of “process” in Section 1910.119(b).
Delek further argues that the PPU “is simply too far removed from the
[FCCU] to be considered part of the PSM-covered ‘process’ . . . .” For this
argument, Delek relies on two interpretive letters from OSHA, one from
January 2008 and the other from February 1997. See OSHA Std. Interp.
1910.119 (D.O.L.), 2008 WL 2565070 (Jan. 31, 2008) (2008 OSHA Letter);
OSHA Std. Interp. 1910.119 (D.O.L.), 1997 WL 33798325 (Feb. 28, 1997) (1997
OSHA Letter). According to Delek, these letters indicate that equipment is part
of a “process” only “if that system has a ‘direct involvement in the overall
functioning of the process’ and ‘can affect or cause a release.’”
The 2008 OSHA Letter, however, makes it clear that utility systems (the
type of equipment at issue in that letter) are within the “scope . . . of the PSM
standard” if they are “use[d] . . . to control/prevent and mitigate catastrophic
releases of [highly hazardous chemicals].” 2008 OSHA Letter, 2008 WL
2565070, at *3 (emphasis added). As indicated, the PPU plays a role in
mitigating the release of highly hazardous chemicals by preventing their

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No. 15-60443
movement into the FCCU control room. 13 Likewise, the 1997 OSHA Letter
indicates that a “process” encompasses equipment, even though that
equipment does not contain highly hazardous chemicals, if it “could . . .
interfere with mitigating the consequences of such a release.” See 1997 OSHA
Letter, 1997 WL 33798325, at *1. This statement, however, is broader than
Delek’s claim that equipment may be part of a “process” only if it has “a ‘direct
involvement in the overall functioning of the process’ and ‘can affect or cause
a release.’” Thus, we do not believe either of the prior OSHA Letters limited
the scope of a “process” in the manner that Delek asserts, or necessarily
forecloses the Secretary’s interpretation here. 14
Accordingly, we conclude that the Secretary reasonably interpreted
Section 1910.119(b) in determining that the PPU is part of a “process.”
2.
The Secretary further contends that the PPU is “process equipment”
subject to Section 1910.119(j)’s inspection regime. As noted, Section 1910.119(j)
supplies an exhaustive list of categories that constitute “process equipment”:
“(i) Pressure vessels and storage tanks; (ii) Piping systems (including piping
components such as valves); (iii) Relief and vent systems and devices; (iv)
Emergency shutdown systems; (v) Controls (including monitoring devices and
sensors, alarms, and interlocks) and, (vi) Pumps.” 29 C.F.R. § 1910.119(j)(1)(i)–

13The Commission likewise considered the 2008 OSHA Letter in the context of Delek’s
argument that equipment can only be part of a “process” if it contains highly hazardous
chemicals. See Delek II, 2015 WL 1957889, at *8.

14Delek also seems to argue that there was no real concern that vapors would enter
the FCCU. However, Delek concedes that the PPU exists to detect the presence of
combustible gases and to prevent their entrance into the FCCU.

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No. 15-60443
(vi). The Secretary argues—as the Commission determined—that the PPU is
a “control” because it contains “sensors” and “alarms.” 15
We agree. To begin with, we do not believe the term “control” in Section
1910.119(j) clearly excludes the PPU. That term is not elsewhere defined in
Section 1910.119, and the regulation provides a non-exhaustive list of items
that qualify as controls. See 29 C.F.R. § 1910.119(j)(1)(v) (“Controls (including
monitoring devices and sensors, alarms, and interlocks”) (emphasis added));
see SCALIA & GARNER, supra, at 132 (“[T]he word include does not ordinarily
introduce an exhaustive list . . . .”). We therefore find that there is sufficient
ambiguity in the text of Section 1910.119(j) to accord deference to the
Secretary’s interpretation of “control” if it is reasonable.
We conclude that it is. Section 1910.119(j) lists “sensors” and “alarms” as
examples of “controls.” See 29 C.F.R. § 1910.119(j)(1)(v). As noted, the PPU
contains two sensors. The first sensor measures whether the FCCU control
room has positive pressure, and this sensor is connected to, and triggers, an
alarm when the control room is not fully pressurized. The second sensor detects

15 The Commission also concluded that the PPU was a “control” because it “is an
integral part of the FCC unit control room.” Delek II, 2015 WL 1957889, at *8. Because we
conclude, based on Section 1910.119(j)’s text, that the Secretary reasonably determined that
the PPU is process equipment, we need not reach this other ground.
The Secretary also argues that the PPU is process equipment because Delek “deemed”
it to be so. Again, because we conclude that the PPU is process equipment based on the text
of Section 1910.119(j), we do not decide this issue. We note, however, that it is unlikely we
would accept this argument if we did consider it. The Secretary relies on a portion of OSHA’s
summary and explanation of Section 1910.119(j), which states that “if an employer deems
additional equipment to be critical to a particular process, that employer should consider that
equipment to be covered by [Section 1910.119(j)] and treat it accordingly.” OSHA, Process
Safety Management of Highly Hazardous Chemicals; Explosives and Blasting Agents, 57 Fed.
Reg. 6356-01, 1992 WL 30969, at *6389 (Feb. 24, 1992). But the Secretary does not direct us
to any language in the text of Section 1910.119 itself to suggest that OSHA may cite an
employer for failing to inspect equipment not covered by subsection (j) just because the
employer believed that equipment should be covered by subsection (j). To the contrary,
subsection (j)’s text indicates that its list of process equipment is exhaustive. See 29 C.F.R.
§ 1910.119(j)(1) (“Paragraphs (j)(2) through (j)(6) of this section apply to the following process
equipment . . . .” (emphasis added)).
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No. 15-60443
the presence of combustible gas and shuts down the PPU intake stack when
combustible gas is detected. Delek II, 2015 WL 1957889, at *7; Delek I, 2011
WL 12709990, at *10. Thus, because the PPU contains multiple sensors and
an alarm that are critical to its function of ensuring that combustible vapors
do not enter the FCCU control room, we conclude that the Secretary reasonably
concluded that the PPU is a “control” within the meaning of Section
1910.119(j). 16
Delek raises several objections in its briefs to reading “control” to
encompass the PPU. First, Delek argues that the PPU cannot constitute a
“control” because Section 1910.119 is concerned with “containment of
chemicals before release,” while the PPU “merely interrupts the spread of
[hazardous] chemicals from one room to the next after the release has already
occurred.” Delek’s description of the Process Safety Management Standard,
however, is inconsistent with the “Purpose” statement at the beginning of
Section 1910.119 itself, which indicates that these standards are designed to
“prevent[] or minimiz[e] the consequences of catastrophic releases of toxic,
reactive, flammable, or explosive chemicals.” See 29 C.F.R. § 1910.119
(Purpose). Preventing the flow of hazardous chemicals into the FCCU control
room after their release is undoubtedly a means of “minimizing the
consequences” of such a release. Id.
Second, Delek notes that the Preamble to the Process Safety
Management Standard indicates that “process equipment” must have “‘a
significant impact on the safety of a process that is covered by [the PSM
Standard].’” According to Delek, because the FCCU’s process activities could

16 Because Section 1910.119(j)’s definition of control explicitly references “alarms” and
“sensors” as examples of “controls,” we do not agree with the amici that interpreting Section
1910.119(j) to encompass the PPU deprives employers of sufficient notice of the potential
scope of Section 1910.119(b) and (j).
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No. 15-60443
continue even if the PPU failed, it cannot be considered “process equipment.”
Again, we do not find this argument persuasive. The PPU does serve a safety
function by preventing the flow of released hazardous chemicals into the FCCU
control room. In so doing, the PPU not only protects the Delek employees
within that control room, but also protects the integrity of the FCCU process
itself, which is managed by those employees. 17
Finally, Delek and the amici argue that interpreting “control” in Section
1910.119(j) to encompass the PPU would lead to absurd results because a door,
window, wall, or anything else that “‘interrupts the circulation of already-
released hazardous chemicals’” would constitute “process equipment.” This
slippery slope argument, however, ignores the fact that the PPU’s purpose is
to prevent the flow of hazardous chemicals into the FCCU control room. While
a door, window, or wall may have this effect incidentally, they are not designed
for this purpose as is the PPU, nor are they equipped with sensors and alarms
to detect the presence of hazardous gases and to measure whether the FCCU
control room is properly pressurized. Thus, we disagree with Delek and the
amici that upholding the Secretary’s interpretation of Section 1910.119(b) and
(j) sweeps equipment only tangentially related to a covered process into the
definitions of “process” and “process equipment,” or that it brings non-
equipment, such as a door or window, into the ambit of those subsections.
We therefore hold that the relevant provisions of Section 1910.119 do not
clearly exclude the PPU from being a part of a “process” or “process

17 Delek also argues that “the Commission failed to see the distinction between
independently possessing controls and being a control for a PSM-covered ‘process.’” According
to Delek, “[t]he fact that the PPU has sensors does not bring it within [Section
1910.119(j)(4)(i)] because the controls have nothing to do with the FCC unit.” For the reasons
already given, we have concluded that the PPU can reasonably be viewed as a part of the
FCCU process, and so its operation as a “control” under Section 1910.119(j) is for a covered
“process.”
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No. 15-60443
equipment.” Because the Secretary’s interpretation is reasonable, we defer to
that interpretation. 18
IV.
We hold that the citations for Items 4 and 12 are barred by Section
658(c)’s six-month statute of limitations. We also hold that the Secretary
reasonably determined that the PPU is covered by 29 C.F.R. § 1910.119.
Accordingly, we VACATE the citations for Items 4 and 12 and AFFIRM the
citation for Item 8, which amounts to $6,300.

18 Delek argues vigorously that the Commission erred by declining to consider
testimony of its experts as to whether the PPU was a part of “process” and constituted
“process equipment,” while not similarly declining to consider the testimony of the
Secretary’s expert on the same subject. See Delek II, 2015 WL 1957889, at *7 n.7. We agree
with Delek that the Commission had no justifiable reason for declining to consider Delek’s
expert’s testimony while not doing the same for the Secretary’s expert’s testimony. On appeal,
the Secretary did not attempt to defend the Commission’s action in this regard.
However, we conclude that the Commission’s error was harmless, and so we do not
reverse on this basis. See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of
prejudicial error.”); United States v. Johnson, 632 F.3d 912, 930 (5th Cir. 2011) (“‘In
administrative law, as in federal civil and criminal litigation, there is a harmless error rule.’”
(quoting Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659–60 (2007)). Upon
reviewing the Commission’s decision, it is clear that the Commission based its conclusion on
the text of Section 1910.119(b) and (j) and the undisputed facts regarding the PPU’s function.
See Delek II, 2015 WL 1957889, at *6–9. The Commission’s decision does not appear to rely
in any way on the testimony of the Secretary’s expert in support of its decision to affirm the
citation for Item 8, and its decision is consistent with both parties’ factual descriptions of the
PPU. As a consequence, we conclude that the Commission’s error “‘clearly had no bearing on
the procedure used or the substance of decision reached,’” and so its error was harmless.
Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 (5th Cir. 2001) (quoting U.S.
Steel Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979)).
21