Sanderson Farms, Incorporated v. OSHC

Case: 19-60592 Document: 00515483862 Page: 1 Date Filed: 07/09/2020

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

FILED
July 9, 2020
No. 19-60592
Lyle W. Cayce
Clerk
SANDERSON FARMS, INCORPORATED (PRODUCTION DIVISION),

Petitioner

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

Respondent

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

Before WIENER, ENGELHARDT, and OLDHAM, Circuit Judges.
WIENER, Circuit Judge:
Petitioner Sanderson Farms, Inc. (“Sanderson”) petitions for review of a
determination by the Occupational Safety and Health Review Commission (the
“Commission”) that it violated various regulations of the Department of
Labor’s Occupational Safety and Health Administration (“OSHA”). We find no
error, so we deny Sanderson’s petition.
I. Background
The Secretary of Labor (“Secretary”) is charged by statute “with
responsibility for setting and enforcing workplace health and safety standards”
and has delegated that power to OSHA. Martin v. OSHRC, 499 U.S. 144, 147
(1991); Delegation of Authority and Assignment of Responsibility to the
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No. 19-60592
Assistant Secretary for Occupational Safety and Health, 77 Fed. Reg. 3912
(Jan. 25, 2012). Sanderson operates a chicken-processing plant in Waco, Texas
that uses anhydrous ammonia as a refrigerant to freeze the processed
chickens. In 2017, OSHA issued document requests to Sanderson and
conducted inspections of its plant to check for compliance with OSHA’s Process
Safety Management of Highly Hazardous Chemicals (“PSM”) standard, 29
C.F.R. § 1910.119. The PSM standard “contains requirements for preventing
or minimizing the consequences of catastrophic releases of toxic, reactive,
flammable, or explosive chemicals,” expressly including anhydrous ammonia.
29 C.F.R. § 1910.119, Purpose. The PSM standard applies to Sanderson’s plant
because Sanderson uses more than ten thousand pounds of ammonia. See 29
C.F.R. § 1910.119, App’x A.
The Secretary issued Sanderson a citation charging six violations of the
PSM standard. Two items from that citation are at issue in this petition: (1)
Item 5a, which charges that Sanderson did not “establish and implement
written procedures to maintain the on-going mechanical integrity of the
process” with respect to safety cutouts, emergency stop testing procedures, and
pressure vessel level control test procedures, in violation of 29 C.F.R.
§ 1910.119(j)(2); and (2) Item 5b, which charges that Sanderson “failed to
perform inspections and tests on process equipment” including three
compressor cutouts and two emergency stop buttons, in violation of 29 C.F.R.
§ 1910.119(j)(4)(i).
Both of the allegedly violated regulations are found in the section of the
PSM standard that requires an employer to implement a mechanical integrity
program, 29 C.F.R. § 1910.119(j). That section “contain[s] requirements for
maintaining the mechanical integrity of process equipment in order to assure
that such equipment is designed, installed, and operates properly,” with the
ultimate goal of “ensur[ing] that highly hazardous chemicals covered by the
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standard are contained within the process and not released in an uncontrolled
manner.” Process Safety Management of Highly Hazardous Chemicals;
Explosives and Blasting Agents, 57 Fed. Reg. 6356, 6388–89 (Feb. 24, 1992)
(codified at 29 C.F.R. pt. 1910).
The safety cutouts of Item 5a and compressor cutouts of Item 5b refer to
the same equipment, viz., devices that shut down ammonia compressors when
monitored conditions—temperature, pressure, or oil pressure—fall outside of
allowable limits. The emergency stops referred to in Items 5a and 5b are
buttons inside and outside of the ammonia machinery room that, when
pressed, shut down the flow of ammonia to respond to a release. The pressure
vessel level control mentioned in Item 5a ensures that the level of ammonia in
the pressure vessel stays low enough to avoid overflowing.
Sanderson contested the citation. The Secretary withdrew several
citation items in May 2018, and an Administrative Law Judge (“ALJ”) held a
hearing on the remaining items in August 2018. The ALJ affirmed Item 5a in
its entirety and Item 5b with respect to the compressor cutouts and emergency
stops. The ALJ vacated all other parts of the citation. Sanderson petitioned the
Commission for discretionary review of the ALJ’s decision. When the
Commission declined to direct the case for review, the ALJ’s order became the
final order of the Commission on July 1, 2019. See 29 U.S.C. § 661; 29 C.F.R.
§ 2200.90(d) (2005). Sanderson now petitions this court for review of the
Commission’s order.
II. Jurisdiction and Standard of Review
We have jurisdiction over this petition under 29 U.S.C. § 660. “Though
the ALJ’s order became final only when the Commission declined to conduct
discretionary review, we apply the same standard of review to the final
decision here as we would if the Commission had directly issued its own
decision.” Excel Modular Scaffold & Leasing Co. v. OSHRC, 943 F.3d 748, 753
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(5th Cir. 2019). We must affirm the ALJ’s findings of fact “if they are supported
by substantial evidence on the record considered as a whole even if this court
could justifiably reach a different result de novo.” MICA Corp. v. OSHRC, 295
F.3d 447, 449 (5th Cir. 2002) (quoting Trinity Marine Nashville, Inc. v.
OSHRC, 275 F.3d 423, 426–27 (5th Cir. 2001)). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Excel Modular Scaffold & Leasing Co., 943 F.3d at 753 (quoting
Chao v. OSHRC, 401 F.3d 355, 362 (5th Cir. 2005)). We may only overturn the
ALJ’s legal conclusions if they are “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706; Trinity Marine
Nashville, Inc., 275 F.3d at 427.
III. Analysis
Generally, the Secretary has the burden of proving “(1) that the cited
standard applies; (2) noncompliance with the cited standard; (3) access or
exposure to the violative conditions; and (4) that the employer had actual or
constructive knowledge of the conditions through the exercise of reasonable
due diligence.” Sanderson Farms, Inc. v. Perez, 811 F.3d 730, 735 (5th Cir.
2016). Sanderson contends that various parts of the citation should be vacated
because: (1) The standards do not apply to the equipment referenced in the
citation, (2) any violation of the standards did not create a hazard and did not
expose employees to a hazard, (3) Sanderson did not violate the standards, and
(4) Sanderson could not reasonably have had knowledge of any violative
condition.
A. Whether the Mechanical Integrity Program Applies to the Equipment
Cited in Items 5a and 5b
Sanderson contends that the standards cited in Items 5a and 5b—
§ 1910.119(j)(2) and § 1910.119(j)(4)(i), respectively—do not apply to the
compressor cutouts and emergency stops referenced in Items 5a and 5b

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because that equipment does not fall within the scope of the mechanical
integrity program as defined by § 1910.119(j)(1). Sanderson does not contest
that the pressure vessel level control is included. Section (j)(1) states:
“(1) Application. Paragraphs (j)(2) through (j)(6) of this section apply to the
following process equipment: . . . (iv) Emergency shutdown systems; [and]
(v) Controls (including monitoring devices and sensors, alarms, and interlocks)
. . . .” 29 C.F.R. § 1910.119(j)(1).
As for the compressor cutouts, Sanderson does not dispute that: (a) The
compressors or their cutouts are “process equipment” as referred to in the
opening part of section (j)(1)—that is, equipment “associated with” “any
activity involving a highly hazardous chemical including any . . . handling
. . . of such chemicals”—or (b) that the cutouts are “[c]ontrols” as specified in
subsection (v). See 29 C.F.R. § 1910.119(b); Process Safety Management, 57
Fed. Reg. at 6389. That should end the inquiry.
Instead, Sanderson contends that because compressors are not included
in subsection (j)(1), neither are their component parts, thus excluding the
compressor cutouts. There is no support in the text of section (j)(1) for this
interpretation. The text contains only two necessary qualifications: (1) that the
equipment be process equipment, and (2) that the equipment’s type be one of
those enumerated. The first requirement removes any possibility of a runaway
regulation engulfing all interlocks in the entire plant. See Process Safety
Management, 57 Fed. Reg. at 6389 (“Paragraph (j)(1) is intended to cover only
that equipment associated with a process that is covered by this standard.”).
The ALJ’s determination that the compressor cutouts are subject to the
mechanical integrity program as delineated by subsection (j)(1) was, therefore,
not an abuse of discretion or otherwise contrary to law.
As for the emergency stops, Sanderson argues that they are not included
in the mechanical integrity program because (1) Sanderson’s witness testified
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that they are not emergency shutdown systems, (2) they are “not designed to
protect the mechanical integrity of the equipment by preventing a release,” and
(3) they would only be activated after some other mechanical failure that led
to a release. These arguments are unavailing. First, there is nothing in the text
of the regulation that limits the application of the mechanical integrity
program to equipment intended to prevent a release. See 29 C.F.R.
§ 1910.119(j). The requirements of section (j) apply to the categories of
equipment listed in subsection (j)(1) as long as they are process equipment.
Second, in arguing for a distinction between equipment that acts before
or after a release, Sanderson misconstrues the purpose of the regulation. The
purpose of the overall PSM standard is “preventing or minimizing the
consequences of catastrophic releases.” 29 C.F.R. § 1910.119, Purpose
(emphasis added). Emergency stops activated after a release can certainly
minimize the consequence of that release. See Delek Ref., Ltd. v. OSHRC, 845
F.3d 170, 183 (5th Cir. 2016) (rejecting the same argument as to equipment
that prevented the flow of released hazardous chemicals into a control room).
The mechanical integrity program’s purpose is to “assure that” “equipment
[that] could have a significant impact on the safety of a process” “is designed,
installed, and operates properly.” Process Safety Management, 57 Fed. Reg. at
6388. Emergency shutdown systems are not necessarily included in the
mechanical integrity program because they protect the mechanical integrity of
other equipment, but because they are themselves “equipment [that] could
have a significant impact on the safety of a process” as listed in section (j)(1).
Process Safety Management, 57 Fed. Reg. at 6388.
Third, Sanderson misrepresents the witness’s testimony. After several
questions about how emergency stops act only after a release, the witness was
asked whether the emergency stops are “an emergency shutdown system
designed to prevent a release.” Whether equipment is an “emergency shutdown
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system intended to prevent a release,” however, is irrelevant to whether that
equipment is included in section (j)(1) because, as explained above, there is no
requirement in section (j)(1) limiting its application to equipment intended to
prevent a release. The Secretary’s witness testified that the emergency stops
are emergency shutdown systems, and Sanderson points to no evidence before
the ALJ suggesting otherwise. The ALJ’s determination that the emergency
stops are subject to the mechanical integrity program was also, therefore, not
an abuse of discretion or otherwise contrary to law.
B. Whether Any Violations Exposed Workers to a Hazard
Sanderson claims that Items 5a and 5b should be vacated because any
violation did not expose employees to a hazard. Sanderson insists that the
failure of the cited equipment would not cause a release and that even if it
caused increased pressure in the ammonia system, that pressure would be
harmlessly relieved by other safety devices.
“Since OSHA is required to determine that there is a hazard before
issuing a standard, the Secretary is not ordinarily required to prove the
existence of a hazard each time a standard is enforced.” Sanderson Farms, Inc.,
811 F.3d at 735. A “general standard [that] incorporates a hazard as a violative
element” is the exception to this rule. Bunge Corp. v. Sec’y of Labor, 638 F.2d
831, 834 (5th Cir. Unit A Mar. 1981); see also, e.g., S & H Riggers & Erectors,
Inc. v. OSHRC, 659 F.2d 1273, 1282 (5th Cir. Unit B Oct. 1981) (holding that
the standard requiring “appropriate personal protective equipment in all
operations where there is an exposure to hazardous conditions” required proof
of a hazard). Neither § 1910.119(j)(2) nor § 1910.119(j)(4), however, apply only
when there is a hazardous condition. Subsection (j)(2) states that “[t]he
employer shall establish and implement written procedures to maintain the
on-going integrity of process equipment,” and subsection (j)(4)(i) states,
“Inspections and tests shall be performed on process equipment.” 29 C.F.R.
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§§ 1910.119(j)(2), (j)(4)(i). Both standards are of the ordinary sort for which a
hazard is presumed.
Sanderson’s evidence that there are other devices in the process intended
to prevent or mitigate a release of ammonia or that the failure of a particular
piece of equipment would not cause a release on its own is not dispositive as to
whether a violation exposed employees to a hazard. The Secretary’s witness
testified that the failure of compressor cutouts, pressure vessel level controls,
or emergency stops could lead to the release of, or the failure to mitigate the
release of, ammonia and that a lack of written procedures and testing could
lead to such failure. The ALJ’s determination that Sanderson failed to rebut
the presumption of exposure to a hazard was not an abuse of discretion or
otherwise contrary to law.
C. Whether Sanderson Violated § 1910.119(j)(4)(i) by Failing to Test the
Equipment Cited in Item 5b
Citation Item 5b charges Sanderson with failing to test compressor
cutouts and emergency stops as required by the mechanical integrity program.
The relevant provisions of the testing requirement found in § 1910.119(j)(4)
read:
(4) Inspection and testing.
(i) Inspections and tests shall be performed on process equipment.
(ii) Inspection and testing procedures shall follow recognized and
generally accepted good engineering practices.
(iii) The frequency of inspections and tests of process equipment
shall be consistent with applicable manufacturers’
recommendations and good engineering practices, and more
frequently if determined to be necessary by prior operating
experience.
29 C.F.R. § 1910.119(j)(4).
Sanderson contends that subsection (i) does not require it to perform
inspections and tests on all process equipment, but rather only that equipment

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for which recognized and generally accepted good engineering practices
(“RAGAGEP”) require inspection and testing. In Sanderson’s view, the
inclusion of subsections (ii) and (iii)—which require that inspection and testing
procedures and frequency conform with or exceed RAGAGEP and
manufacturer recommendations—into the inspection and testing requirement
means that the overall inspection and testing requirement exists only within
the scope of RAGAGEP. If that were the case, the Secretary would have the
burden to show that RAGAGEP require the testing of the compressor cutouts
and emergency stop buttons referenced in Item 5b, which was not done here.
But that interpretation is wrong. Considering the testing and inspection
requirement of section (j)(4) as a whole, as we must do, see John Hancock Mut.
Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S. 86, 94 (1993), the regulation
sets a minimum standard that process equipment must be inspected and
tested, then gives employers the flexibility to implement that testing guided
by RAGAGEP. First, the plain language of subsection (i) explicitly requires
that process equipment be inspected and tested. 29 C.F.R. § 1910.119(j)(4)(i).
If Sanderson’s interpretation were correct, subsection (i) would instead read,
“Inspections and tests [required by recognized and generally accepted good
engineering practices] shall be performed on process equipment.” Id. OSHA
clearly knew how to incorporate RAGAGEP into a regulation: The remaining
subsections of section (j)(4) do exactly that. The minimum requirement in
subsection (i), that inspection and testing be performed on process equipment,
however, does not include such a reference. A proper interpretation of the
regulation gives meaning to that absence. See United States v. Gonzales, 520
U.S. 1, 5 (1997) (“Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (quoting Russello v. United States, 464 U.S. 16, 23
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(1983))); Goodman v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017) (“[T]he
rules of statutory construction apply when interpreting an agency
regulation.”).
Second, under Sanderson’s reading, subsection (i) is surplusage. If a
requirement to follow RAGAGEP in testing procedures also dictates what
equipment must be tested in the first place, there would be no need to
separately require inspection and testing. Interpretations of statutes and
regulations that avoid surplusage are favored. See Microsoft Corp. v. I4I Ltd.
P’ship, 564 U.S. 91, 106 (2011); Delek Ref., Ltd., 845 F.3d at 177 (“Our
precedents, however, have repeatedly cautioned against interpreting statutes
in such a manner if at all possible.”). The reading that gives effect to all parts
of the section is that subsection (i) establishes a baseline requirement that
process equipment be inspected and tested, and subsection (ii) allows an
employer flexibility in how—but not whether—to perform that inspection and
testing. This reading creates no surplusage: Even if there were pieces of
process equipment for which RAGAGEP provide no specific guidance on
inspection and testing, subpart (ii) would still require companies to apply
RAGAGEP where they existed.
Third, contrary to what Sanderson argues, an independent requirement
for inspection and testing is consistent with the overall purpose of the
regulation. In the preamble to the final rule, OSHA states that the mechanical
integrity program section, now § 1910.119(j), “contain[s] requirements for
maintaining the mechanical integrity of process equipment in order to assure
that such equipment is designed, installed, and operates properly.” Process
Safety Management, 57 Fed. Reg. at 6388. What is now subsection (i)
“require[s] inspections and tests to be performed on specified process
equipment because of the potential safety and health hazards that could result
if the equipment malfunctioned.” Id. at 6390. What is now subsection (ii), on
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the other hand, serves “to make sure that process equipment is inspected and
tested properly, and that the inspections and tests are performed in accordance
with appropriate codes and standards.” Id. The two subparts work together,
balancing the competing interests of safety and efficiency by setting a
minimum standard for inspection and testing of “equipment[] critical to
process safety”—that is the equipment listed in subsection (j)(i)—then allowing
employers flexibility to carry it out. 1 Id. at 6389. The mechanical integrity
section is not merely an admonishment to maintain equipment wisely.
Neither does this interpretation put Sanderson in an impossible position,
as it claims. Sanderson’s expert conceded that it is possible to test the process
equipment listed in Items 5a and 5b. And, although witnesses testified that
there are risks associated with testing emergency stops, there is no evidence
in the record that any industry or professional standards prohibit testing the
compressor cutouts and emergency stop buttons referenced in Item 5b. 2 More

1 The Process Safety Management Standard’s nonmandatory Appendix C corroborates
this approach as well. Regarding the mechanical integrity program, it advises:
The first step of an effective mechanical integrity program is to compile and
categorize a list of process equipment and instrumentation for inclusion in the
program. This list would include pressure vessels, storage tanks, process
piping, relief and vent systems, fire protection system components, emergency
shutdown systems and alarms and interlocks and pumps. For the
categorization of instrumentation and the listed equipment the employer
would prioritize which pieces of equipment require closer scrutiny than others.
Meantime to failure of various instrumentation and equipment parts would be
known from the manufacturers data or the employer’s experience with the
parts, which would then influence the inspection and testing frequency and
associated procedures. Also, applicable codes and standards . . . provide
information to help establish an effective testing and inspection frequency, as
well as appropriate methodologies.
29 C.F.R. § 1910.119, App’x C. The guidance says that the first step is to make a list of process
equipment, including the specific types of equipment enumerated in subsection (j)(1).
Appendix C makes no mention of an employer’s judgment in deciding what equipment to put
on the list. The following steps do ask the employer to exercise judgment and experience, but
only to determine the frequency and procedures for inspection and testing.
2 Even if there were such evidence, Sanderson is prohibited from asserting a “greater

hazard” defense because it failed to include that affirmative defense in its answer. See 29
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importantly, RAGAGEP—that is, recognized and generally accepted good
engineering practices—are not a static reference manual. They are guidance
for how to conduct the practice of engineering, which itself includes the
development of new procedures and technology and the design of systems to
achieve a goal. That compliance with an OSHA regulation requires some
innovation does not make it absurd or unreasonable. See B & B Insulation, Inc.
v. OSHRC, 583 F.2d 1364, 1372 n.13 (5th Cir. 1978) (“In the area of safety, . . .
the Secretary is not restricted by the status quo. He may raise standards which
require improvements in existing technologies or which require the
development of new technology. . . .” (quoting Society of Plastics Industry, Inc.
v. OSHA, 509 F.2d 1301, 1309 (2d Cir. 1975))).
In addition to arguing that the text of the regulation incorporates
RAGAGEP, Sanderson also variously asserts that § 1910.119(j)(4)(i) is cabined
by RAGAGEP because (a) the standard is a performance standard that
requires the Secretary to prove that Sanderson acted unreasonably or contrary
to industry practice, (b) Sanderson could not have known of the violative
condition because it relied on industry practice and experts in not testing the
equipment, and (c) applying the standard as does the Secretary violates
Sanderson’s right to fair notice.
Performance standards are those that “require an employer to identify
the hazards peculiar to its own workplace and determine the steps necessary
to abate them.” Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283 (No. 97-
1073, 2007). “Because performance standards . . . do not identify specific
obligations, they are interpreted in light of what is reasonable.” Id. Some
sections of the PSM standard are performance standards, see, e.g.,

C.F.R. § 2200.34(b)(3), (4). Sanderson does not deny this. It instead argues that evidence of
the risks posed by testing merely shows the lack of RAGAGEP specific to testing the cutouts
and emergency stops of Items 5a and 5b.
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§ 1910.119(e)(1) (“[T]he process hazard analysis shall be appropriate to the
complexity of the process and shall identify, evaluate, and control the hazards
involved in the process.”), but § 1910.119(j)(4)(i) is not.
Sanderson cites to several instances of courts reading a reasonableness
or industry practice requirement into an OSHA standard, but
§ 1910.119(j)(4)(i) does not have anything like the generality or open-
endedness of the standards found in those cases. The standards in those cases
required that “[t]he employer shall provide adequate washing facilities . . .
where contaminants may be harmful to the employees,” 3 or “[t]he employer . . .
require[] the wearing of appropriate personal protective equipment . . . where
there is an exposure to hazardous conditions,” 4 or “[p]rotective equipment . . .
shall be provided . . . wherever it is necessary by reason of hazards of processes
or environment,” 5 or “[t]he employer shall instruct each employee in the
recognition and avoidance of unsafe conditions . . . to control or eliminate any
hazards,” 6 or “[o]ne or more methods of machine guarding shall be provided to

3 “The employer shall provide adequate washing facilities for employees engaged in
the application of paints, coating, herbicides, or insecticides, or in other operations where
contaminants may be harmful to the employees. Such facilities shall be in near proximity to
the worksite and shall be so equipped as to enable employees to remove such substances.”
Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283 (No. 97-1073, 2007) (quoting 29 C.F.R.
§ 1926.51(f)(1)).
4 “The employer is responsible for requiring the wearing of appropriate personal

protective equipment in all operations where there is an exposure to hazardous conditions
[or] where this part indicates the need for using such equipment to reduce the hazards to the
employees.” S & H Riggers & Erectors, Inc., 659 F.2d at 1275 n.1 (quoting 29 C.F.R.
§ 1926.28(a); B & B Insulation, Inc., 583 F.2d at 1368) (same).
5 “Protective equipment, including personal protective equipment for eyes, face, head,

and extremities, protective clothing, respiratory devices, and protective shields and barriers,
shall be provided, used, and maintained in a sanitary and reliable condition wherever it is
necessary by reason of hazards of processes or environment, chemical hazards, radiological
hazards, or mechanical irritants encountered in a manner capable of causing injury or
impairment in the function of any part of the body through absorption, inhalation or physical
contact.” Cotter & Co. v. OSHRC, 598 F.2d 911, 912 n.1 (5th Cir. 1979) (quoting 29 C.F.R.
§ 1910.132(a))
6 “The employer shall instruct each employee in the recognition and avoidance of

unsafe conditions and the regulations applicable to his work environment to control or
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protect the operator and other employees in the machine area from hazards,” 7
or “the employer [shall] establish and follow a program of . . . inspections . . .
to ensure that all . . . parts . . . are in a safe operating condition and
adjustment.” 8 All but one of those standards apply when there is an undefined
“hazard,” necessitating the application of reasonableness or industry practice
to determine what “hazard” means and therefore when the standards apply.
The last requires an employer to make inspections to “ensure . . . a safe
operating condition.” 29 C.F.R. § 1910.217(e)(1)(i). Two aspects of that
standard make it a performance standard: (1) It establishes an end result that
the employer chooses how to work toward, and (2) “safe operating condition” is
so general as to require definition by reference to industry standards for the
regulation to be reasonable. See Siemens Energy & Automation Inc., 20 BNA
OSHC 2196 (No. 00-1052, 2005).
Section 1910.119(j)(4)(i), on the other hand, does not set a goal for an
employer to meet with flexible methods; it prescribes that inspections and
testing must happen. Neither does § 1910.119(j)(4)(i) apply only in the
presence of a hazard, as other performance standards do. Instead, it applies to
all equipment included in the mechanical integrity program. It is not,
therefore, a performance standard defined in reference to industry practice.

eliminate any hazards or other exposure to illness or injury.” W.G. Fairfield Co., 19 BNA
OSHC 1233 (No. 99-0344, 2000) (quoting 29 C.F.R. § 1926.21(b)(2)).
7 “One or more methods of machine guarding shall be provided to protect the operator

and other employees in the machine area from hazards such as those created by point of
operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding
methods are—barrier guards, two-hand tripping devices, electronic safety devices, etc.”
Martin v. Miami Indus., Inc., 983 F.2d 1067 (6th Cir. 1992) (quoting 29 C.F.R.
§ 1910.212(a)(1)).
8 “It shall be the responsibility of the employer to establish and follow a program of

periodic and regular inspections of his power presses to ensure that all their parts, auxiliary
equipment, and safeguards are in a safe operating condition and adjustment.” Siemens
Energy & Automation Inc., 20 BNA OSHC 2196 (No. 00-1052, 2005) (quoting 29 C.F.R.
§ 1910.217(e)(1)(i)).
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The requirement for “inspections and tests” on process equipment is explicit
and unambiguous, and therefore satisfies the reasonableness requirement of
due process and fair notice on its own. See Corbesco, Inc. v. Dole, 926 F.2d 422,
427 (5th Cir. 1991).
As to Sanderson’s knowledge, “the Secretary must show that the
employer knew of, or with exercise of reasonable diligence could have known
of the non-complying condition.” Trinity Indus., Inc. v. OSHRC, 206 F.3d 539,
542 (5th Cir. 2000). The Secretary need not prove that Sanderson understood
that it was violating § 1910.119(j)(4)(i), but rather only “awareness of the
physical conditions constituting the violation.” Calpine Corp. v. OSHRC, 774
F. App’x 879, 884 (5th Cir. 2019) (unpublished) (quoting Sec’y of Labor v.
Phoenix Roofing, Inc., 17 BNA OSHC 1076 (No. 90-2148, 1995), aff’d sub nom.
Phoenix Roofing, Inc. v. OSHRC, 79 F.3d 1146 (5th Cir. 1996) (unpublished
table decision)). There is no dispute that Sanderson knew it did not test the
equipment cited in Item 5b, so that element of the Secretary’s burden is met.
D. Whether Sanderson Violated § 1910.119(j)(2) by Failing to Maintain
Written Procedures for Inspecting and Testing the Equipment Cited in
Item 5a
Citation Item 5a charges that Sanderson “did not establish and
implement written procedures to maintain the on-going mechanical integrity
of the process” with respect to “[s]afety cutouts,” emergency stop testing
procedures, and the “[l]evel control pressure vessel test procedure.” The
applicable standard in § 1910.119(j)(2) states, “Written procedures. The
employer shall establish and implement written procedures to maintain the
on-going integrity of process equipment.” 29 C.F.R. § 1910.119(j)(2).
Sanderson points to several documents that it says constitute its written
procedures to maintain the ongoing integrity of process equipment: (1) an
overview document describing Sanderson’s mechanical integrity program, (2)
a schedule for inspection and maintenance, (3) examples of daily “refrigeration
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No. 19-60592
check sheet[s],” (4) examples of monthly “Inspection List[s]” and “Check
List[s],” and (5) examples of annual inspection forms.
The overview document states the following under the heading
“Maintenance Procedures”:
Written Maintenance Procedures (attached in Volume III
Standard Operating Procedures) have been developed for all
expected routine maintenance, tests and inspections. These
procedures include the following information: Equipment
Identification[,] Required Tools and Equipment[,] Safety Hazards
and Cautions[,] Step-by-Step Procedure[.] These procedures
should be provided to the technician who will actually perform the
work.
...
Each system component or subsystem included on the equipment
list should have a maintenance, inspection and testing history
record kept in the individual equipment file in which all activities
are recorded.
Under the heading “Inspections and tests and their frequency/Documentation
of results” the overview states:
A schedule of periodic tests and inspections has been developed to
ensure pressure boundaries, safety systems, and controls function
to design standards. For all equipment the schedule will identify:
Equipment name and/or specific identifier[,] Type of inspection[,]
Carried out by[,] Frequency (At least)[,] Items Requiring
Attention[.]
Forms for Annual Inspections (completed forms in Volume III)
Annual visual inspections will be performed on each piece of
equipment.
Recording of daily inspection information will be recorded on
equipment log sheets.
Daily Log Sheets & System Tours
...
Each shift a qualified Operator will record specified readings
on gauges, thermometers and other direct reading
instrumentation. Additionally, the Operator will complete a
thorough inspection tour of the system once every shift and
annotate the Inspection Tour Checklist. One complete
checklist will be filled out for each 24-hour period.
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No. 19-60592
Out of Normal Readings
The log sheets are used to document visual inspections.
When out of normal readings are observed, the operation will
take the necessary action to restore normal conditions. . . .
Sanderson’s inspection and maintenance schedule document matches
the description in the overview document for a “schedule of periodic tests and
inspections.” It is a table listing, for each type of equipment, types of inspection
such as “Operational Maintenance” or “Inspection/Maintenance,” who should
carry them out, their frequency, and “Items Requiring Attention.” The section
for compressors lists “Pressure and Temperature Readings” as an item
requiring attention but makes no reference to cutouts. The section for vessels
lists “Controls, Safety Provisions” as items requiring attention. No part of the
schedule refers to emergency stops.
The daily inspection forms are titled, “Refrigeration Check Sheet.” They
contain a series of printed tables that have rows labelled with a printed short
phrase and columns with a printed equipment identifier. The cells are printed
as blank and, in the examples provided, have been filled in by hand with either
“ok” or a numerical value. In the compressors section, the potentially relevant
row labels include “Suction Pressure,” “Suction Temp,” “Discharge Pressure,”
“Discharge Temp,” “Oil Pressure,” “Oil Temp,” “Oil Return,” and “Oil Level.”
There is no explicit mention of the cutouts. The vessel section contains
potentially relevant labels of “Vessel Condition” and “Vessel Level.” The
monthly inspection forms have a similar format. For compressors, the one
potentially relevant label is “Inspect Safety Cutouts.” For vessels, potentially
relevant labels include “Defrost & Inspect,” “Vessel Condition,” and “Liquid
Level.” There is no specific mention of the vessel level control. Neither the daily
nor monthly forms mention emergency stops.
The annual forms appear to be a general template that has information
specific to each piece of equipment additionally printed onto the form. The
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No. 19-60592
compressor forms have a section for “Safety Cutouts” with typed values for
“Low Pressure Cutout,” “High Pressure Cutout,” “Low Oil Pressure,” and “High
Oil Temp.” There is also a printed table with columns “Requirement” and
“Confirm.” One row asks, “Is machine equipped with high pressure cutout?”
and has a handwritten “yes.” The vessel form is similar. The only potentially
relevant piece asks, “Does it have control columns?” Otherwise, there is no
mention of the pressure vessel level control. One annual form is titled,
“Equipment Integrity Inspection – General.” It has a list of printed questions
and blank spaces under a “Yes or No?” column in which answers have been
written by hand. One question asks, “Are emergency shut off switches
accessible?”
The ALJ noted that the documents were checklists which contained “no
instructions for performing the required procedures” and concluded that
Sanderson therefore failed to comply with the requirement of § 1910.119(j)(2)
to have written procedures for maintenance of process equipment. Sanderson
first responds that the checklists and overview document do satisfy
§ 1910.119(j)(2) because they are written procedures and because they conform
with industry standards.
A “procedure” is “the performance of particular actions, esp[ecially]
considered in regard to method,” “the established or prescribed way of doing
something,” or “[a] particular course or mode of action.” Procedure, n., OXFORD
ENGLISH DICTIONARY, https://www.oed.com/view/Entry/151775 (last visited
May 27, 2020). The overview document and checklists do not contain any of the
particular actions, methods, or ways of doing maintenance on compressor
cutouts, the vessel level control, or the emergency stops. At best, they indicate
that maintenance should be done on the cutouts and level control, but they do
not even say that much for the emergency stop buttons. But the written
documents contain no information about how to perform the maintenance.
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No. 19-60592
That information does exist, because Sanderson’s employees do in fact perform
some maintenance on process equipment. A Sanderson employee testified that,
for example, when filling out the daily check sheet for the pressure vessel, he
looks at the level reading on the computerized level control and the reading on
a manual sight glass and, if they match, writes down “ok” on the inspection
form under “Vessel Level.” But the only part of that procedure that is written
is “Vessel Level.” That is no procedure at all.
Sanderson contends that because the mechanical integrity program also
requires an employer to train employees in the required maintenance
procedures, the written procedures need only be specific enough to guide a
trained employee. Sanderson claims that nonbinding guidance interpreting the
standard supports that approach. We disagree. Reading the writing and
training requirements as complementing, rather than restricting, one another
is consistent with the standard’s purpose, which the preamble describes as
“requir[ing] a written program that would assure that process equipment
receives careful, appropriate, regularly scheduled maintenance to assure its
continued safe operation.” Process Safety Management, 57 Fed. Reg. at 6389.
Overall, “[p]rocess safety management is the proactive identification,
evaluation and mitigation or prevention of chemical releases that could occur
as a result of failures in process, procedures or equipment.” 29 C.F.R.
§ 1910.119, App’x C. A requirement to reduce procedures to writing furthers
the goal of ensuring that failures in those procedures may be addressed
proactively. Written procedures also “ensure that tests and inspections are
conducted properly and that consistency is maintained even where different
employees may be involved.” Id. That the regulation also requires employees
be trained in the procedures does not diminish the importance with respect to
those regulatory purposes of reducing the procedures to writing. Neither does
it alter the plain-meaning requirement that the employer establish written
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No. 19-60592
procedures. See Randalls Food & Drugs, Inc. v. OSHRC, 116 F. App’x 501, 502
(5th Cir. 2004) (unpublished) (rejecting the argument that another PSM
requirement that procedures be reduced to writing was not violated by a lack
of writing when employees were trained in the procedure).
Although Sanderson insists repeatedly in its briefs that the documents
it provides comply with industry standard for PSM mechanical integrity
maintenance procedures, it cites to only one point in the record that might
support that claim. See FED. R. APP. P. 28(a)(8)(A) (requiring that arguments
contain “citations to the authorities and parts of the record on which the
appellant relies”); United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th
Cir. 1989) (“[I]t is counsel’s responsibility to point out distinctly and specifically
the precise matters complained of, with appropriate citations to the page or
pages in the record where the matters appear.”). The single cited support is a
letter from the engineer who designed Sanderson’s ammonia refrigeration
system. It says, “Per OSHA 29 CFR 1910.119(j)(4)(i-iv) Mechanical Integrity,
Inspection and testing, we have reviewed Mechanical Integrity inspection
documentation for the closed ammonia refrigeration system equipment. . . . We
find the inspections in keeping with industry standards for closed ammonia
refrigeration system operation.” That letter is unpersuasive for several
reasons. First, Sanderson cites to no testimony from the letter’s author
explaining how he arrived at that conclusion. Second, the document discussed
above that provides an overview of Sanderson’s mechanical integrity
maintenance program states that “Appendix III” contains “[w]ritten
[m]aintenance [p]rocedures . . . for all expected routine maintenance, tests and
inspections,” including “[s]tep-by-[s]tep [p]rocedure[s].” It is possible that the
letter’s certification is based in part on those maintenance procedures
supposedly contained in Appendix III, or on the representation that they exist,
but no such written procedures have been entered into the record here. Third,
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No. 19-60592
the letter references section (j)(4) of the PSM standard, which mandates
inspections and tests of process equipment, but says nothing about the
requirement for written maintenance procedures in section (j)(2). There is,
therefore, no evidence that the industry interprets “written procedure” any
differently than did the ALJ.
Sanderson also contends that interpreting the (j)(2) standard to require
written instructions for how to perform the maintenance is contrary to law
because (a) the standard is a performance standard which requires the
Secretary to prove that Sanderson acted unreasonably or contrary to industry
practice, (b) Sanderson could not have known of the violative condition because
it relied on industry practice and experts to develop its maintenance
procedures, and (c) applying the standard as the Secretary does violates
Sanderson’s right to fair notice.
None of Sanderson’s reasonableness arguments are availing because the
standard’s plain language is sufficiently clear to put Sanderson on constructive
notice that its conduct was deficient. The industry-custom requirement of
performance standards only applies to standards that “do not identify specific
obligations.” Thomas Indus. Coatings, Inc., 21 BNA OSHC 2283. And to satisfy
the requirement of fair notice, the Secretary need only resort to external
sources of clarity, such as industry practice, when “the language of the
regulation is not specific enough” to satisfy the reasonableness test on its own.
Corbesco, Inc., 926 F.2d at 427. The standard here is quite specific about the
need for “written procedures” for the maintenance of “process equipment.”
Sanderson’s written documents contain no procedures whatsoever for the
maintenance of compressor cutouts, the pressure vessel level control, or
emergency stops, which are process equipment. Whether the standard is
ambiguous about the level of detail required in the written procedures is

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No. 19-60592
irrelevant when, as here, the employer has failed to comply with the standard
at all.
Even if there were some ambiguity as to the meaning of “procedure,”
there is evidence that Sanderson had actual notice that a “procedure” requires
an explanation of how to accomplish the task. Sanderson’s overview of its
mechanical integrity program separates “Maintenance procedures” from
“Inspections and tests and their frequency/Documentation of results.” The
overview document states that Sanderson developed written maintenance
procedures for “all expected maintenance tests and inspections” that include,
among other information, “Step-by-Step Procedure[s].” The overview is not
referring there to the schedule and checklists entered into the record because
the overview describes those documents separately under “Inspections and
tests and their frequency/Documentation of results.” Save for the unpersuasive
and inapplicable letter from its engineer, Sanderson cites to no evidence in the
record suggesting otherwise. Sanderson’s own documents show an
understanding of the meaning of “procedure” applied here and even purport to
have complied with the standard.
In sum, because the standard is clear on its face and there is evidence
that Sanderson had actual notice of the standard’s meaning, the application of
§ 1910.119(j)(2) in this manner is reasonable and violates neither fair notice
nor due process. Beyond that, the Secretary is only required to prove that
Sanderson knew of the “physical conditions constituting the violation,” which
Sanderson does not dispute. See Calpine Corp., 774 F. App’x at 884.
The Secretary bore his burden with respect to all elements of a violation
regarding Items 5a and 5b, and there is no due process issue with the
interpretation of the regulations applied by the ALJ. Sanderson’s petition for
review is therefore DENIED.

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