                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 4, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                             FOR THE TENTH CIRCUIT


    WYNNEWOOD REFINING
    COMPANY,

               Petitioner,

    v.                                                  No. 08-9572
                                                     (OSHC-1: 07-0609)
    SECRETARY OF LABOR,                             (Petition for Review)

               Respondent.


                             ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



         Wynnewood Refining Company (Wynnewood) petitions for review of the

determination of the Occupational Safety and Health Review Commission

(Commission) that it willfully violated a process safety management standard

under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678

(OSHA). We have jurisdiction under 29 U.S.C. § 660(a), and deny the petition.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I

      Wynnewood owns and operates a petroleum refinery in Oklahoma. The

refinery’s alkylation (Alky) unit, which operates under pressure, uses

hydrofluoric (HF) acid to convert hydrocarbons into gasoline. At the completion

of this process, an acid relief neutralizer (ARN) “scrubs” the HF acid from the

mixture before it is released to the flare line — an approximately 100-foot section

of a fourteen to sixteen-inch diameter pipe that runs from the Alky unit to the

refinery’s main flare. “HF acid is corrosive and dangerous[.]. . . The ARN

scrubs the HF acid to, among other things, ensure that it does not injure

employees.” Pet’r Opening Br. at 5.

      In early 2004, Wynnewood performed a “turnaround” of the refinery in

which all equipment was shut down, inspected, and repaired if necessary. The

flare line was inspected during this process and found to be in compliance with

the minimum acceptable thickness requirement of .22 inches. 1 However, just a

few months later, in June 2004, the line developed its first of many leaks. The

initial temporary repair method selected by Wynnewood was to wrap the line with

a fiberglass product called Perma Wrap and put a clamp on the repair.



1
       Under 29 C.F.R. § 1910.119(d), Wynnewood is required to have an
inspection manual that establishes the parameters for its process equipment.
In turn, Wynnewood’s manual sets out the “minimum acceptable thickness”
for fourteen to sixteen-inch process piping such as the flare line at .22 inches.
R., Vol. IV at 01584.

                                         -2-
      Concerned about the number of leaks and the apparent ineffectiveness of

the Perma Wrap repairs, Wynnewood’s chief inspector, David Long, hired an

outside party in November 2004, to test the thickness of the line. The testing

established that the line was at or below the minimum acceptable thickness of

.22 inches at twelve locations. These findings were presented to management

during a February 2005 meeting, in which Mr. Long also recommended replacing

portions of the line. Management, however, rejected this recommendation and

continued its course of temporary repairs.

      In addition to the recurrence of leaks in areas that had been repaired, the

flare line continued to develop new leaks. Some two or three months after the

first repair, Wynnewood discovered that Perma Wrap was ineffective because it

could not resist HF acid. Still, it continued to use Perma Wrap while it looked for

an alternative temporary repair method. Wynnewood eventually switched to a

modified Belzona repair method, which involved applying Belzona (an adhesive)

to the leak and clamping a half piece of metal pipe over the repair. 2

      In September 2005, Mr. Long took new thickness readings of the flare line,

which showed “quite a bit of metal loss[,]” R., Vol. I at 89, since the November

2004 test. Despite these additional findings, management again ignored his


2
      The traditional use of Belzona consists of applying the product to a pipe
and welding a metal plate to the repair area; however, because the flare line
contained flammable gases it could not be safely welded and, instead, a clamp
was used to secure the metal plate to the line.

                                          -3-
recommendation to replace the line. At or about the same time, Tommy Harris,

the manager of maintenance and construction, also recommended replacement.

He was “told to look for other alternatives to repair the line because we couldn’t

shut the unit down.” Id., Vol. II at 322. Specifically, he requested permission to

replace the line from Wynnewood’s assistant plant manager and vice president,

who told him it “was not economically feasible[.]” Id. Mr. Harris and his

department took it upon themselves to fabricate a new section of flare line and

informed management about the project. The new section was completed in late

2005, but it was never installed. Instead, management decided to put off

replacement until the next scheduled “turnaround” in 2008, despite the fact that

the modified Belzona repair method was also proving to be ineffective.

      In March 2006, the technician in charge of monitoring the Alky unit,

Wesley Walker, presented himself at the daily maintenance meeting to express his

mounting concerns about the flare line. Witnesses described his attendance as

unusual because non-managerial employees typically did not attend these

meetings. He reported pressure-control problems in the Alky unit and employees’

concerns that the patches on the line would not hold during the venting process.

He also relayed an incident where a spray or mist had leaked from the line and

contacted a worker’s protective equipment. Although it had been nearly two

years since the initial leak, Wynnewood was looking at yet another temporary

repair method — “a different type of patch[,] . . . sheet Teflon[,] . . . that [] would

                                           -4-
have a greater resistance to acid degradation than what the fiberglass patch was.”

Id. at 470. “[T]hey didn’t know how they were going to seal the ends of [] it so

that it would contain the acid if there was a [release]. But [they] said that they

could put the Teflon on and then they could wrap it with the fiberglass on the

outside for strength.” Id. at 470-71. Mr. Walker was told that in the meantime,

a new flare header was being built so the line could be replaced. At or near this

time, Wynnewood placed a barricade under a section of the line that, despite

multiple repairs, continued to leak.

      In response to a complaint about the flare line and other matters, Casey

Perkins, an OSHA compliance safety and health officer (CSHO), arrived at the

refinery on May 9, 2006. He conducted an opening conference, during which he

explained that he “would be giving [Wynnewood] a document request[,]” id.,

Vol. IIA at 660, and attended Wynnewood’s safety orientation. The next day,

May 10, he conducted an “initial walk-around[,]” id. at 661, with refinery

personnel, during which he took photographs and observed some, but not all,

of the areas where repairs had been made because he did not have the required

protective equipment. In addition, CSHO Perkins testified that he could not

complete his inspection because

      we had not collected the documentation on the process to know the
      documented hazard to the process. We did not know how the
      refinery had evaluated and made repairs to the flare line. We did not
      know how long those repairs had been ongoing and we did not know
      the overall condition of the unit or the overall exposure to employees

                                          -5-
      that were on site. And while we’re on site on May 9th and May 10th
      we were also told that the alkylation unit was in circulation mode
      which means it’s sort of in a static state of operation where no feed is
      being introduced to the unit and therefore no alkaloid is being
      produced. And therefore the pressures and operating conditions of
      the unit are not totally active.

Id. at 718.

      On May 12, 2006, a fire erupted in the Alky unit that burned for several

days. One cause of the fire was a rip in the flare line where several repairs

had been attempted, which released a cloud of vapor, and which in turn ignited.

After learning of the fire, CSHO Perkins returned to Wynnewood to complete his

inspection. At the conclusion of the investigation, he issued Wynnewood a

citation for multiple OSHA violations, including a willful violation of 29 C.F.R.

§ 1910.119(j)(5) for its failure to correct the deficiencies in the line in a safe and

timely manner. 3

      Following a four-day hearing, an administrative law judge (ALJ) issued a

detailed decision and order dated August 4, 2008, in which she found Wynnewood

willfully violated § 1910.119(j)(5). Wynnewood’s petition for review was denied

by the Commission without directing further review, which made the ALJ’s

decision the Commission’s final order. 29 U.S.C. § 661(j).




3
      The parties settled the other alleged violations.

                                           -6-
                                         II

      The single issue on review is whether substantial evidence supports the

Commission’s finding that Wynnewood willfully violated § 1910.119(j)(5), which

requires an employer to “correct deficiencies in equipment that are outside

acceptable limits . . . before further use or in a safe and timely manner when

necessary means are taken to ensure safe operation.” A violation “is willful if

done knowingly and purposely by an employer who, having a free will or choice,

either intentionally disregards [an OSHA safety] standard or is plainly indifferent

to its requirement.” Kent Nowlin Constr. Co. v. Occupational Safety & Health

Review Comm’n, 593 F.2d 368, 372 (10th Cir. 1979) (quotation omitted).

      Our standard of review is codified in 29 U.S.C. § 660(a), which provides

that the “findings of the Commission with respect to questions of fact, if

supported by substantial evidence on the record considered as a whole, shall

be conclusive.” In turn, “[s]ubstantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion[.]” Slingluff

v. Occupational Safety & Health Review Comm’n, 425 F.3d 861, 866 (10th Cir.

2005) (quotation marks omitted). This court’s role is “narrow and highly

deferential to OSHA and the Secretary[,]” Tierdael Constr. Co. v. Occupational

Safety & Health Review Comm’n, 340 F.3d 1110, 1114 (10th Cir. 2003), and

we neither re-weigh the evidence, second-guess the factual inferences drawn




                                        -7-
therefrom, nor substitute our judgment on the credibility of witnesses, Ready

Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1551 (10th Cir. 1996).

      There were several grounds on which the ALJ based her finding of

willfulness, and contrary to Wynnewood’s arguments, each is supported by

substantial evidence. As its overarching argument, Wynnewood claims that the

ALJ failed to consider “its good faith efforts to correct deficiencies on the flare

line[,] [which] includes the ultimate step of complete replacement.” Pet’r

Opening Br. at 20. To the contrary, citing, in part, Secretary of Labor v. J.A.

Jones Construction Company, 1993 WL 61950, at *9 (O.S.H.R.C. Feb. 19, 1993),

the ALJ specifically acknowledged that

      [a]n employer’s good faith efforts to correct a hazard, even if not
      entirely effective, can negate willfulness; however, whether an
      employer acted in good faith is an objectively reasonable test. Thus,
      if an employer’s measures to address a hazard were to maintain
      production rather than a genuine effort to abate the hazard, the
      violation will be found to be willful.

R., Vol. VIII, Doc. 38 at 24.

      Given that the ALJ applied the proper legal standard, our role is not to

re-weigh the evidence, but to determine whether the ALJ’s findings that

Wynnewood did not act in good faith are supported by substantial evidence.

We conclude that they are. Among other things, the ALJ noted that Wynnewood

discovered the first leak in June 2004, and by February 2005, it knew the line had

corroded to the extent that it was below the minimum acceptable thickness


                                          -8-
requirement. Nonetheless, it used temporary repair methods that were ineffective

for nearly two years. And in the face of evidence that demonstrated significant

further corrosion, management continued to ignore recommendations to replace

the line because it “was not economically feasible.” Id., Vol. II at 322.

      Wynnewood next claims that the ALJ erred in finding that the decision to

replace the flare line was not made until after OSHA began its inspection on

May 9, 2006. In particular, it claims that the ALJ failed to adequately credit

Mr. Long’s testimony that his best recollection was that the decision to replace

the line was made prior to OSHA’s first visit: “I believe that OSHA came in on

like a Wednesday, the fire was a Friday, and I believe the Monday of that same

week was – basically had been determined that the following Monday, which

is the Monday after the Friday fire, that the line was going to be replaced.”

Id., Vol. I at 133. To be sure, the ALJ found Mr. Long to be generally credible;

however, she acknowledged a conflict in the evidence on this issue, cited the

“equivocal” nature of his and similar testimony, id., Vol. VIII, Doc. 38 at 27, and

concluded that “the weight of the evidence shows [that management] made the

decision to shut down the line after OSHA arrived.” Id. Substantial evidence

supports this conclusion. Id. at 26-28. Further, this was only one of several

reasons why the ALJ found the violation was willful.

      Wynnewood also takes issue with the ALJ’s finding that it “had both a

management change of policy . . . and a temporary repair procedure . . . that,

                                         -9-
if followed, would have resulted in appropriate action as to the flare line.”

Id. at 25. Wynnewood admits that it did not follow its own policies, but argues

that this evidence cannot support a finding of willfulness because the ALJ “never

considered the reason why the failure to follow certain procedures occurred.”

Pet’r Opening Br. at 30. However, there was nothing for the ALJ to consider in

light of Wynnewood’s failure to offer any explanation for its non-compliance.

      Last, the refinery argues that the ALJ erred by failing to consider its

“excellent safety record[,]” id. at 28, and OSHA “never once questioned

Wynnewood’s management on the measures taken[,]” id. at 29, when it was at the

facility on May 9 and 10, 2006. As for its alleged “excellent safety record,” the

Commissioner correctly points out that no such record exists because there were

no known inspections prior to May 9. R., Vol. IIA at 731. And as previously

discussed, the site visit was the first stage of the inspection, and OSHA was

waiting for documentation regarding the flare line to consider, among other

things, the efficacy of its temporary repairs.

      The petition for review is denied.

                                                     Entered for the Court


                                                     Bobby R. Baldock
                                                     Circuit Judge




                                           -10-
