5th Circuit Upholds Sanderson Farms OSHA Violations

A panel of Fifth Circuit Judges on Thursday found no error in the determination by the Occupational Safety and Health Review Commission that Sanderson Farms, Inc. violated various regulations of the Department of Labor’s Occupational Safety and Health Administration (OSHA).  Sanderson Farms filed a petition against the findings, which was ultimately denied by the panel.

Sanderson operates a chicken-processing plant in Waco, Texas that used anhydrous ammonia to freeze the processed chickens.  Anhydrous ammonia is a toxic gas that is corrosive to human tissue upon contact.  In 2017, OSHA issued a document request to Sanderson and conducted inspections of the plant to check for compliance of the Process Safety Management of Highly Hazardous Chemicals (PSM) standard. 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.”  The PSM standard applies to Sanderson’s plant because Sanderson uses more than “ten thousand pounds of ammonia.”

As a result of the inspection, the Secretary of the Department of Labor issued a citation charging six violations of the PSM standard.  Sanderson petitioned two items from the citation: Item 5a, which charges 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;”  and 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 its petition, Sanderson argued the standards do not apply to the equipment referenced in the citation, any violation of the standards did not create a hazard or expose employees to a hazard, and it did not violate the standard or have had any knowledge of a violative condition. 

The panel first held Sanderson’s argument that the compressors and emergency buttons did not apply was invalid, because there is nothing in the text of the regulation supporting that.  Additionally, Sanderson “misconstrued the purpose of regulation” in its argument, the PSM standard is “preventing or minimizing the consequences of catastrophic release.”  Finally, the panel stated Sanderson “mispresents the witness’s testimony” in regards to questions about the emergency stops being required to prevent release or not—that is not required in the regulation the opinion stated. 

Next, the panel found that Sanderson’s evidence that it had other devices that were intended to prevent or mitigate a release of ammonia or that a failure of equipment leading to a release would not cause harm on its own “is not dispositive as to whether a violation exposed employees to a hazard.” 

In regards to the charge that Sanderson failed to test equipment, the panel held, yet again Sanderson’s interpretation was wrong.  The regulation, 29 C.F.R. § 1910.119(j)(4), sets “a minimum standard that process equipment must be inspected and tested.”  Additionally, Sanderson’s argument that it did not violate 29 C.F.R. § 1910.119(j)(2) for failing to maintain written procedures for inspection and testing equipment also failed.  The panel held the single source Sanderson pointed to in the record supporting its nonvolatile argument was “unpersuasive.” 

In conclusion, the panel stated “[t]he Secretary bore his burden with respect to all elements of a violation regarding Items 5a and 5b.”

Circuit Judge Wiener wrote the opinion.  Sanderson was represented by Kane Russell Coleman & Logan.