Summaries of Selected Opinions, 0121 COBJ, Vol. 50, No. 1 Pg. 84

PositionVol. 50, 1 [Page 84]

50 Colo.Law. 84

Summaries of Selected Opinions

Vol. 50, No. 1 [Page 84]

Colorado Lawyer

January, 2021


No. 19-9533. Scalia v. Wynnewood Refining Co., LLC. 10/27/2020. OSHA. Judge Moritz. Occupational Safety and Health Administration Violations—Regulatory Interpretation—Highly Hazardous Chemicals—Repeat Violations Standard—Substantial Continuity Test.

Wynnewood Refining Co., LLC (Wynne-wood) owned a refinery where a boiler exploded and killed two workers. The Occupational Safety and Health Administration (OSHA) cited Wynnewood for violating 29 C.F.R. § 1910.119, which regulates the management of highly hazardous chemicals. The OSHA Review Commission (Commission) upheld the violations but determined that prior violations at the refinery occurred under a different entity. Therefore, the Commission did not classify the violations as repeat violations under 29 U.S.C. § 666(a).

On appeal, Wynnewood argued that § 1910.119 did not apply to the boiler because the boiler did not contain highly hazardous chemicals. Section 1910.119 created a standard for process safety management (PSM) of highly hazardous chemicals. The regulation states that a process is any activity involving a highly hazardous chemical; and any group of vessels that are interconnected, and separate vessels that are located such that a highly hazardous chemical could be involved in a potential release, are considered a single process. Here, while the boiler at issue did not contain highly hazardous chemicals, it was interconnected with two other units, both of which were covered by the PSM standard, and it was located such that a highly hazardous chemical could be involved in a potential release. Therefore, the regulation applied to the boiler.

The Secretary of Labor argued that the Commission erred in finding there were no repeat violations, contending that the Commission incorrectly applied the substantial continuity test and, even assuming it correctly applied the test, it factually erred by failing to find that the continuity of personnel factor favored successor liability. Repeat liability can apply to successor entities where there is "substantial continuity" between the two entities. The substantial continuity test considers the totality of circumstances by analyzing (1) the nature of the business, (2) the jobs and working conditions, and (3) continuity of personnel. Here, at the time of the prior violations, the refinery was owned by Wynnewood Inc. Following the purchase, Wynnewood Inc. became Wynnewood LLC. In analyzing the entity's continuity, the Commission correctly explained the substantial continuity test, considered the evidence in light of the test's three factors, and relied on relevant information. Therefore, the Commission did not err.

Further, substantial evidence supports the Commission's finding that there was no substantial continuity between Wynnewood Inc. and Wynnewood LLC. Accordingly, the Commission's decision to characterize the violations at issue as serious rather than repeat was proper.

The order was affirmed.

No. 19-1213. United States v. Denezpi. 10/28/2020. D.Colo. Judge Seymour. Double Jeopardy—Dual Sovereignty Doctrine—Tribal Sovereignty—Courts of Indian Offenses—Fed. R. Evid. 403—Harmless Error.

Defendant is a Navajo tribal member. He was arrested by Ute Mountain Ute tribal authorities and charged in the Court of Indian Offenses of the Ute Mountain Ute Agency (CFR court) with assault and battery, terroristic threats, and false imprisonment. Defendant entered an Alford plea to the assault and battery charges, and the other charges were dismissed. He was given credit for time served and released.

Six months later, defendant was indicted in the U.S. District Court for the District of Colorado for aggravated sexual assault in violation of 18 U.S.C. §§ 224l(a)(l)-(2) and 1153(a). The indictment stemmed from the same incident that led to the assault and battery...

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