Case: 19-60592 Document: 00515483862 Page: 1 Date Filed: 07/09/2020
`
`United States Court of Appeals
`Fifth Circuit
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE 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
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 2 Date Filed: 07/09/2020
`
`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
`2
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 3 Date Filed: 07/09/2020
`
`No. 19-60592
`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
`3
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 4 Date Filed: 07/09/2020
`
`No. 19-60592
`(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
`
`4
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 5 Date Filed: 07/09/2020
`
`No. 19-60592
`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
`5
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 6 Date Filed: 07/09/2020
`
`No. 19-60592
`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
`6
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 7 Date Filed: 07/09/2020
`
`No. 19-60592
`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.
`7
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 8 Date Filed: 07/09/2020
`
`No. 19-60592
`§§ 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
`
`8
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 9 Date Filed: 07/09/2020
`
`No. 19-60592
`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
`9
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 10 Date Filed: 07/09/2020
`
`No. 19-60592
`(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
`10
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 11 Date Filed: 07/09/2020
`
`No. 19-60592
`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
`11
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 12 Date Filed: 07/09/2020
`
`No. 19-60592
`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.
`12
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 13 Date Filed: 07/09/2020
`
`No. 19-60592
`§ 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
`industry practice
`requirement
`into an OSHA
`standard, but
`or
`§ 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
`13
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 14 Date Filed: 07/09/2020
`
`No. 19-60592
`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)).
`14
`
`

`

` Case: 19-60592 Document: 00515483862 Page: 15 Date Filed: 07/09/2020
`
`No. 19-60592
`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 maintai