2020 Environmental Real Estate Issues

In Sanderson Farms v OSHA, the US Court of Appeals for the Fifth Circuit said the Process Safety Management (PSM) rules of the Occupational Safety and Health Administration (OSHA) required Sanderson Farms (Sanderson) to “establish and implement written procedures to maintain the ongoing integrity of the process” for safety cutouts, emergency stop testing procedures, and pressure vessel level control test procedures.  The 5th Circuit also said OSHA was correct in citing Sanderson for failing to perform inspections and tests on compressor cutouts and emergency stop buttons.

Text of Regulations Consistent with OSHA Action

In upholding OSHA’s action, the 5th Circuit said the text of the rules provided no support for Sanderson’s arguments that the PSM regulations do not apply to compressors or their component parts.  The Court also held the regulations apply to emergency stops and other controls that activate after a release.

No Exemption for Redundant Controls

Sanderson further asserted it should not be cited because the violations did not expose employees to a hazard.  According to Sanderson, the failures related to redundant controls; other controls would ensure no exposure.  The 5th Circuit rejected this argument, agreeing with OSHA that circumstances could exist where the failure of these controls would result in the failure to prevent or minimize a release.

Rules, Not RAGAGEP, Determine what Must Be Tested

Sanderson and OSHA agreed testing procedures must follow recognized and generally accepted good engineering practices (RAGAGEP).  Sanderson argued it did not need to test some of its controls based on RAGAGEP.  OSHA asserted, and the 5th Circuit agreed, the PSM regulations determine what controls require testing; RAGAGEP is used to determine the testing procedures.  Sanderson may not avoid testing by arguing RAGAGEP did not require it when the rules mandate the controls be tested.

For a copy of the 5th Circuit opinion http: //www.ca5.uscourts.gov/opinions/pub/19/19-60592-CV0.pdf