Randalls Food & Drugs, Inc. v. Occupational Safety & Health Review Commission

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 15, 2004
_____________________
Charles R. Fulbruge III
No. 04-60061 Clerk
_____________________
RANDALLS FOOD & DRUGS, INC., AND ITS SUCCESSORS,
Petitioner,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,
Respondents.
_________________________________________________________________
Petition for Review:
Occupational Safety & Health Review Commission
Cause No. 02-1398
_________________________________________________________________
Before WIENER and PRADO, Circuit Judges, and KINKEADE,1 District
Judge.
PER CURIAM.2
In this appeal, the petitioner, Randalls Food & Drugs, Inc.
(Randalls), asks this court to review and set aside the
administrative law judge’s (ALJ) order affirming two citations
issued by the appellee, the Occupational Safety and Health
Administration (OSHA). OSHA cited Randalls for violating section
1
District Judge of the Northern District of Texas, sitting
by designation.
2
Pursuant to 5TH CIRCUIT RULE 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
1910.119 of OSHA’s Process Safety Management Standard because its
written operating procedures do not address the conditions for
emergency shutdown of Randalls’s refrigeration system or the
steps necessary to correct or avoid operating deviations. The
ALJ determined that Randalls’s operating procedures were
deficient because the procedures do not clearly assign the duty
of shutting down the refrigeration system, do not address the
conditions for shutting down the system, and do not address the
steps required to correct or avoid operating deviations.
This court reviews the ALJ’s findings of fact under a
substantial evidence standard, affording deference to the ALJ’s
determination upon hearing the evidence.3 This court is “bound
by the ALJ’s findings of fact, including his judgments of
credibility supporting those facts, if they are supported by
substantial evidence on the record considered as a whole.”4 The
court can overturn the ALJ’s conclusions of law only if those
conclusions are “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law.”5
Randalls challenges the ALJ’s finding that its operating
3
See 29 U.S.C. § 655(f); Cleveland Consol., Inc. v.
Occupational Safety and Health Review Comm’n, 649 F.2d 1160, 1167
(5th Cir. 1981).
4
Cleveland Consol., 649 F.2d at 1167.
5
Trinity Marine Nashville, Inc. v. Occupational Safety and
Health Review Comm’n, 275 F.3d 423, 426-27 (5th Cir. 2001).
2
procedures do not assign the duty of pressing the manual shutdown
button. The operating procedures provide substantial evidence to
support this finding. Nothing in the shutdown procedures
specifically assigns the responsibility for shutting down the
system. Even if any one of Randalls’s employees is permitted to
shut the system down, the shutdown procedures simply do not
indicate that fact.
Randalls also challenges the ALJ’s finding that the
operating procedures do not address the conditions indicating
when the refrigeration system must be shut down. The operating
procedures provide substantial evidence to support this finding.
The procedures do not explain the conditions under which shutdown
is required. Although the procedures suggest that a major leak,
extremely high discharge pressure, and no running water may
warrant an emergency shutdown, the procedures do not explain what
constitutes a major leak or extremely high discharge pressure.
Even if Randalls’s automated control system will shut the
refrigeration system down under conditions specified in the
technical operating procedures for the control system, the
shutdown procedures do not include this explanation. Because the
shutdown procedures do not address the conditions under which
emergency shutdown is required and do not assign shutdown
responsibility to qualified operators, the ALJ’s conclusion that
Randalls’s operating procedures are deficient is not “arbitrary,
capricious, an abuse of discretion, or otherwise not in
3
accordance with the law.”6
Randalls similarly challenges the ALJ’s finding that its
written procedures do not address the steps required to correct
or avoid operating deviations. Randalls’s written procedures
provide substantial evidence to support this finding. The
procedures simply omit any discussion about operating limits.
Although Randalls insists that no reason exists to reduce its
operating standards to writing because its personnel are trained
to operate the refrigeration system, section 1910.119
nevertheless requires Randalls to write down the steps required
to correct or avoid deviations. Randalls has not done that.
Because Randalls’s procedures do not address the steps required
to correct or avoid deviations, the ALJ’s conclusion that
Randalls’s operating procedures are deficient is not “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.”7 Consequently, the court DENIES the
petition for review.
PETITION DENIED.
6
Trinity Marine Nashville, 275 F.3d at 426-27.
7
Id.4