Case: 22-60466 Document: 00516923198 Page: 1 Date Filed: 10/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 6, 2023
No. 22-60466 Lyle W. Cayce
____________ Clerk
Darling Ingredients, Incorporated,
Petitioner,
versus
Occupational Safety and Health Review Commission;
Martin Walsh, Secretary, U.S. Department of Labor,
Respondents.
______________________________
Appeal from the Occupational Safety & Health Review Commission
Agency No. 21-0240
______________________________
Before Jones, Clement, and Haynes, Circuit Judges.
Edith Brown Clement:
Two people were killed while unclogging a machine at a chicken-rendering plant. When the Occupational Safety and Health Agency
investigated, it found that the plant’s “lockout/tagout” procedures did not
“clearly and specifically outline” how to safely work on the machine, so it
cited the plant’s owner. Because we find no error in the decision to uphold
those citations, we AFFIRM.
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I.
Darling Ingredients, Inc. operates a chicken-rendering facility in
Byram, Mississippi.1 One of the machines there is a “hydrolyzer,” or a
contraption that uses pressurized steam to break down “poultry parts,”
namely feathers and quills. The result is a digestible liquid known as “poultry
meal” which Darling uses to make pet food.
Like any machine, the hydrolyzer requires upkeep. Specifically,
chicken parts regularly build up in the hydrolyzer and lead to “blockage[s].”
When that happens, pressure becomes trapped and “caus[es] the whole
[machine] to stop.” To get it running again, the hydrolyzer must be cleaned
out. But to do that, the hydrolyzer’s pent-up pressure must be released first.
Apparently, that can be done in a number of ways. An operator can “shuttl[e]
the gates,” meaning he or she opens and closes a series of doors in the
machine in a certain order, or unlatch a pressure-relief valve. A worker could
also wait for the pressure to bleed off naturally, but that takes time.
On August 10, 2020, the Unit A hydrolyzer at Darling’s facility
became clogged, causing a pressure buildup. The machine’s operator
“shuttl[ed] the gates,” but nothing happened. So he alerted his supervisor,
and his supervisor called the maintenance team. Maintenance sent over three
men—Fortenberry, Young, and Jackson. When they arrived on the scene,
the trio tried the usual tricks—they shuttled the gates and opened the relief
valve—but to no avail. So they cut the power to the hydrolyzer and “closed
the steam valve” so that no more steam would flow into the machine. Then,
_____________________
1
Such a facility “cuts and grinds accepted animal carcasses into small pieces, to be
blended[,] cooked,” and “separated” into “[f]at, protein, and water,” which is used to
make products like soap, cooking oils, and animal feed. Rendering Module, United
States Department of Agriculture,
www.aphis.usda.gov/animal_health/carcass/docs/training/7-rendering.pdf.
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with apparent hesitation, the team decided to remove a bolted, eight-inch
flange from the hydrolyzer in order to release the trapped pressure.
But the removal of any part of the hydrolyzer may result in rapid
depressurization. So, by removing the flange’s bolts, the maintenance crew
risked exposing themselves to the release of 2,000 pounds or more of
pressurized air. That wasn’t lost on the group—each time they took a bolt
off, they would “jump back.” Eventually, however, the “pressure overcame
the threading” of the remaining bolts and the “flange burst open.” When it
did, “steam and hot material . . . spewed out of the machine,” “covering”
the three workers. Jackson and Fortenberry were gravely burned and died
from their wounds.
When the Occupational Safety and Health Administration learned of
Fortenberry and Jackson’s deaths, they launched an investigation. The
agency “took photographs, measurements, [and] conducted interview[s].”
After the investigation, OSHA cited Darling for two violations of 29 C.F.R.
§ 1910.147, a “lockout/tagout” regulation. Lockout/tagout is an industry
term for a safety system that tries to prevent the “unexpected energization
or start up of [] machines” or the “release of stored energy” during
“servic[e] and maintenance.”
29 C.F.R. § 1910.147(b). Section 147 instructs
employers to safeguard their employees from such dangers through isolation
devices, protective equipment, regular training programs, and detailed
written work procedures. See
29 C.F.R. § 1910.147.
Specifically, Darling was charged with failing to “clearly and
specifically outline the . . . rules and technique to be utilized for the control
of hazardous energy,” § 1910.147(c)(4)(ii), and (2) “clearly and specifically
outline the steps for shutting down, isolating, blocking and securing the
machines or equipment to control hazardous energy” in its “energy control
procedures,” § 1910.147(c)(4)(ii)(B). In citing Darling, OSHA concluded
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that the maintenance crew was exposed to a “hazardous energy source”—
the release of “[h]igh pressure steam” from the hydrolyzer—because
Darling did not have any “specific procedure or steps” for the “employee[s]
to reference” while working on the machine.
Darling challenged the citations before the Occupational Safety and
Health Review Commission. At a trial before an Administrative Law Judge,
Darling insisted that the maintenance team went off script. The company
maintained that the group should have called a supervisor—as they were
trained to do—or let the pressure bleed off naturally after their initial efforts
failed. Darling claims that this was the established practice at the Byram
facility and was clearly stated in the hydrolyzer’s machine-specific
lockout/tagout procedure. OSHA, on the other hand, argued that the crew’s
conduct stemmed directly from a lack of clearly written guidance in the
company’s lockout/tagout procedures. Specifically, “Step 6” of the
procedure told the workers only that, to make the machine safe, they must
“[r]elieve internal pressure.” Per OSHA, Darling should have—as required
by law—written a clearer, more instructive policy on locking out the
hydrolyzer before working on it.
After the trial, the ALJ ruled in favor of OSHA, finding that (1)
Darling did violate Section 147; (2) the violation was a repeat; (3) it was
serious; and (4) Darling waived any “independent employee misconduct”
defense. Darling appeals all of these decisions, save for the serious
classification.2
_____________________
2
We note briefly that the ALJ concluded that “there is no question[] the violations
were serious—death did occur and it was a probable consequence if an accident resulted
from the violative condition.” The former factor—the occurrence of a death—is not a
consideration under the “seriousness” standard. Instead, in line with the court’s latter
conclusion, we ask whether there’s a “‘substantial probability’ that a particular violation
could result in death or serious physical harm.’” Chao v. Occupational Safety & Health Rev.
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II.
We are “bound by the administrative law judge’s findings of fact” if
they are “supported by ‘substantial evidence.’” Austin Indus. Specialty
Servs., L.P. v. Occupational Safety & Health Rev. Comm’n, 765 F.3d 434, 438
(5th Cir. 2014) (per curiam) (quoting
29 U.S.C. § 660(a)). Substantial
evidence means “evidence as a reasonable mind might accept as adequate to
support a conclusion.”
Id. It’s a “deferential” standard. S. Hens, Inc. v.
Occupational Safety & Health Rev. Comm’n,
930 F.3d 667, 682 (5th Cir. 2019).
“[E]ven if the appellate court might have reached a different conclusion,” it
must “uphold [the] factual findings if a reasonable person could have found”
similarly. Sanderson Farms, Inc. v. Perez,
811 F.3d 730, 734 (5th Cir. 2016)
(citation and quotations omitted); Excel Modular Scaffold & Leasing Co. v.
Occupational Safety & Health Rev. Comm’n,
943 F.3d 748, 754 (5th Cir. 2019)
(ALJ decisions will be upheld “even if this court could justifiably reach a
different result de novo”) (citation and quotations omitted). As for “legal
conclusions,” they are reviewed for whether they are “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” S. Hens,
930 F.3d at 675 (citations omitted).
A.
We begin with Darling’s merits-based challenge to the citations. To
start, “[OSHA] has the burden of proving sufficient facts to support [a]
citation.” S. Hens., 930 F.3d at 675. That means they must show “by a
preponderance of the evidence: (1) that the cited standard applies; (2)
noncompliance with the cited standard; (3) access or exposure to the
_____________________
Comm’n, 401 F.3d 355, 367 (5th Cir. 2005) (citation omitted). But because Darling didn’t
appeal that issue, it’s forfeited. See Rollins v. Home Depot USA, Inc.,
8 F.4th 393, 397 (5th
Cir. 2021).
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violative conditions; and (4) that the employer had actual or constructive
knowledge of the conditions through the exercise of reasonable due
diligence.” Sanderson Farms, 811 F.3d at 735 (citing Sec’y of Lab. v. Jesse
Remodeling, LLC,
22 BNA OSHC 1340 (O.S.H.R.C.A.L.J. June 2, 2006)).
After a trial, the ALJ found that OSHA established all four
requirements to uphold the Section 147 violations. First, the regulation
clearly applied to the conduct of the maintenance crew—“Darling admits
that[.]” Second, Darling’s employees were exposed to the risks of a lacking
procedure, namely a “serious burn hazard,” because of the violation. Darling
does not contest that either. Third, Darling’s procedure did not comply with
Section 147’s requirement that an employer “clearly and specifically
outline” the methods for controlling hazardous energy. The ALJ rejected
Darling’s argument that its procedures must be “read in conjunction” with
the hydrolyzer’s manual and any training the team received. The procedure,
the ALJ reasoned, must be sufficient in and of itself. But, as OSHA argued,
the hydrolyzer’s procedure was too broad and uninstructive. Finally, the ALJ
found that Darling had actual or constructive knowledge that its
lockout/tagout procedures violated Section 147. Specifically, OSHA proved
that “Darling knew of the contents of its own [lockout/tagout] procedure,
and also knew it had recently been cited for a similar [] violation.” On appeal,
Darling advances two arguments: (1) it complied with Section 147; and (2) it
did not have knowledge of any violation. Considering the standard of review
at play, we disagree.
1.
First, the ALJ found that Darling’s lockout/tagout procedure did not
satisfy the requirements of Section 147. Generally speaking, a lockout/tagout
procedure must be at least detailed enough “to guide an employee through
the lockout process.” Gen. Motors Corp., 22 O.S.H. Cas. (BNA) 1019 at *8
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(O.S.H.R.C. Dec. 4, 2007) (citation omitted). To comply with Section 147, a
procedure must “inform the employee of the specific procedural steps to
shut down and lock out a machine.” Id.
In General Motors, the Commission found that a “brief[]”
lockout/tagout procedure made up of generic commands (i.e., use “normal
stopping procedure,” ensure “dissipation of any stored energy”) was not
adequate. Id. Such language “lacks [] the specifics” required by Section 147.
Id. In another case, Secretary of Labor v. Drexel Chemical Company, an
employer’s written procedures “f[e]ll far short” because they did not guide
employees on “the type and magnitude of the energy, the method to control
the energy, the shut down procedure, the energy isolating device and
method, and the method to dissipate stored or residual energy.”
17 O.S.H. Cas.
(BNA) 1908 (O.S.H.R.C. Mar. 3, 1997) (emphasis added); see also Basic
Grain Prod., Inc.,
24 O.S.H. Cas. (BNA) 2024 at *9 (O.S.H.R.C.A.L.J. Nov.
5, 2013) (under Section 147, a lockout/tagout procedure must provide
“methods to dissipate or restrain energy”).
With that in mind, we turn to Darling’s lockout/tagout procedure.
The machine-specific procedure for the hydrolyzer is a ten-step process that
is mandatory when “maintenance or servicing is done.”3 After all, this
process seeks to ensure that the machine is safe to work on. Consequently,
the first few steps (i.e., Steps 1–5) are not surprising: a worker must notify
anyone in the area of pending work and turn the machine off. Then, a worker
must use “energy isolating devices,” or “lockout[s],” to ensure that the
machine isn’t turned back on. The rub, however, is in Step 6. At Step 6,
before working on the machine, a worker must “[m]ake all of the following
_____________________
3
Darling has a general lockout/tagout policy that applies company-wide. That
policy is not at issue. See 29 C.F.R. § 1910.147(c) (providing that, with some exceptions,
machine-specific procedures must be created).
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sources of stored energy”—including “steam”—“safe by relieving pressure
restraining, disconnecting, or discharging: Relieve internal pressure.”
In reading Step 6, we’re left with a simple question—what does
“[r]elieve internal pressure” mean? According to Darling, once you reach
Step 6, you are “to do nothing [] as that is the only way to relieve the internal
pressure from the hydrolyzer.” Consequently, Darling told its employees
“all that they need[ed] to tell [them].” OSHA, on the other hand, argues that
Step 6 is not detailed enough to instruct a worker on how to make the
“sources of stored energy[y] . . . safe,” much less how to “[r]elieve internal
pressure.” There is “no specific instruction . . . on how to do that,” or
anything “that even tells the operator . . . [to] go find a supervisor.” We
agree with OSHA.
Practically speaking, Darling’s argument is flawed for a couple of
reasons. First, there are steps that a worker can take besides waiting around.
For example, they can shuttle the gates or open the relief valve. But those
two well-established activities aren’t written down in the protocol. Neither is
the “next step” that you follow if those do not work, namely “contact [a]
supervisor.” In fact, Darling’s personnel plainly admitted at trial that such
commands are “not written in the procedure.” In short, Darling’s policy
does not match up with its own current practices.
Second, doing nothing is doing something; if waiting was the right thing
to do, there is no reason that Darling’s procedure could not say that. In
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response, Darling contends that it should not be required to put “what ifs”
and “troubleshooting procedures” in the lockout/tagout policy. But, by its
own admission, sitting by is not a “what if”—it’s the only thing to do. Yet
it’s not in the policy. That means Darling’s current procedure is in direct
conflict with the supposedly correct approach of sitting and waiting. After all,
to “relieve pressure” is an active instruction.
But the shortcomings of Darling’s policy go beyond practical
considerations. Consider General Motors and Drexel Chemical. In both cases,
the lockout/tagout policies were “overgeneralized document[s]” that, as a
result, had “little to no practical utility for the end user.” Basic Grain, 24
O.S.H. Cas. (BNA) 2024 at *10; Control of Hazardous Energy Sources
(Lockout/Tagout),
54 Fed. Reg. 36644-01 (to be codified at 29 C.F.R. Pt.
1910). Ordinarily, “because the purpose of the lockout procedure is to guide
an employee through the lockout process, [] general procedures are not
acceptable.” Drexel Chem.,
17 O.S.H. Cas. (BNA) 1908 at *5. That is why
procedures must be specific, “developed, documented and utilized.”
29
C.F.R. § 1910.147(c)(4)(i); S. Hens,
2018 O.S.H. Dec. (CCH) ¶ 33662 at *5
(CMPAU Mar. 20, 2018).
Here, Step 6’s command gives away the game: you’re told to, but not
how to, “[r]elieve internal pressure.” That is fatal. At the very least, Darling’s
procedures should have told the crew how to “dissipate or restrain” energy
stored in the hydrolyzer. Basic Grain, 24 O.S.H. Cas. (BNA) 2024 at *10.
Instead, it simply states that the crew must “[r]elieve” pressure. That is not
detailed enough. See S. Hens,
2018 O.S.H. Dec. (CCH) ¶ 33662 at *5
(CMPAU Mar. 20, 2018) (finding OSHA has “emphasized the importance
of having [the] procedures in writing” and noting that “[n]one of the written
procedures or training materials contain an explicit instruction to shut down
and lock out the equipment after rinsing and foaming but before scrubbing,”
meaning the “document is not specific to any equipment and provides no
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further explanation. It is not a clear directive”). We agree with the ALJ—
Darling’s “procedures must say more,” whether by providing a detailed
method or even telling the team “to stop and wait . . . until the pressure
dissipates . . . .” But Darling did neither. Consequently, the user is left with
no clear guidance on how to safely control the release of hazardous pressure
and steam from the hydrolyzer. Thus, there is substantial evidence to support
the ALJ’s finding of noncompliance, namely that Darling failed to “clearly
and specifically outline the . . . rules and technique to be utilized for the
control of hazardous energy.” 29 C.F.R. § 1910.147(c)(4)(ii).
2.
Second, the ALJ found that Darling knew or should have known its
policies didn’t pass Section 147 muster. Under our caselaw, Darling must
have “[known] of, or with [the] exercise of reasonable diligence could have
known of the non-complying condition.” Trinity Indus., Inc. v. Occupational
Safety & Health Rev. Comm’n, 206 F.3d 539, 542 (5th Cir. 2000). The
knowledge prong is focused on the “physical conditions constituting the
violation,” meaning “[t]he departure from OSHA standards, not the
worker’s injury, is the violation.” S. Hens,
930 F.3d at 676, 679 (citing
Calpine Corp. v. O.S.H.R.C.,
774 F. App’x 879 (5th Cir. 2019) (per curiam)).
And, under our caselaw, a “physical condition” can be an intangible thing or
even the absence of something. See
id. at 676. (discussing the lack of training
as a violation).
Darling insists that it did not have knowledge of any Section 147
violation because it did not know the maintenance crew would remove the
cover to the hydrolyzer’s flange. But Darling misunderstands the focus of the
knowledge prong. The company was cited for failing to “clearly and
specifically address appropriate lockout, tagout procedures for steam trapped
in [the] hydrolyzer during clog removal.” It was not cited for the maintenance
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team’s conduct. After all, the “physical conditions constituting the
violation” was Darling’s lacking written policy, nothing else. Id.
Concluding that Darling had knowledge of its insufficient written
procedures is easy enough. The ALJ found that “Darling knew or . . . should
have known of” them because “Darling knew of the contents of its own []
procedure, and also knew it had recently been cited for a similar
[lockout/tagout] violation.” There is substantial evidence in the record to
support that finding.
Darling—as the master of its files—“created, reviewed, and []
revised” its lockout/tagout procedures. That includes creating and annually
assessing, including in 2020, the hydrolyzer’s machine-specific procedure.
That alone may be enough to satisfy the knowledge requirement for a Section
147(c) violation. In Basic Grain, the Commission found that an employer had
“direct knowledge” of its Section 147(c) violation because it had an
employee who “was responsible for drafting and implementing the
[lockout/tagout] policy.” 24 O.S.H. Cas. (BNA) 2024 at *11. The
Commission reasoned that the employer had “constructive knowledge” of
the violation because its employee “could have performed a more diligent
search of OSHA’s website” and federal regulations “which would have
placed her on notice that” the lockout/tagout policy “was not in compliance
with the standard.”
Id.
Beyond the paperwork, though, Darling was aware that it might have
problematic procedures company-wide. Just months before the citations at
issue, OSHA cited Darling for the exact same violations of Section 147 at an
Idaho plant. The year before, in 2019, Darling was forced to reassess all of its
lockout/tagout procedures after a Tampa facility was similarly cited for
insufficient written protocols. Ultimately, “employer knowledge [is] a factspecific, practical inquiry” that “look[s] to company practice, the details of
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specific incidents, knowledge of supervisors imputable to the company, and
commonsense inferences about what a company and its supervisors should
know and do.” S. Hens, 930 F.3d at 676. The factors for knowledge—
including “company practice[s]” and “commonsense inferences”—clearly
capture past violations.
Id. Consequently, Darling’s repeated violations for
similar shortcomings likely should have alerted management—both
company-wide and locally—to the need for changes to their lockout/tagout
policies.
At the very least, the Byram facility—which has its own regional
management—should have been tipped off by the fact that the hydrolyzer’s
written policies didn’t comport with the actual practices of its employees.
That’s common sense. Id. Of course, if local supervisors knew (or should
have known) of any shortcomings in the lockout protocols, that may mean
Darling as a whole knew too. See Basic Grain,
24 O.S.H. Cas. (BNA) 2024 at
*14 (imputing the “management team[’s]” knowledge that employees were
not trained to the employer as a whole). Consequently, for a host of reasons,
we conclude that the ALJ’s determination that Darling had knowledge of its
Section 147 violations is supported by the law and substantial evidence.
B.
Now we briefly consider whether Darling’s violations were repeat.
Generally, the law discourages—via increased fines—employers from
“repeatedly violat[ing]” OSHA regulations. 29 U.S.C. § 666(a). A violation
is repetitive if, at the time it occurred, it was preceded by “a Commission
final order against the same employer for a substantially similar violation.”
Bunge Corp. v. Sec’y of Lab.,
638 F.2d 831, 837 (5th Cir. 1981). To start,
OSHA must show that “the prior and present citations are for failure to
comply with the same standard.” Deep S. Crane & Rigging Co. v. Harris,
535
F. App’x 386, 390 (5th Cir. 2013) (per curiam); see also Bunge,
638 F.2d at
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837. Then, the burden shifts to the employer to “rebut” that showing with
“evidence of the dissimilarity of the conditions and hazards associated with
the[] violations.” Deep S. Crane, 535 F. App’x at 390. Then we ask “whether
the prior and instant violations resulted in substantially similar hazards.”
Id.
(citation omitted) (emphasis added).
Here, OSHA showed that Darling “was previously cited for violations
of the same provisions,” namely 29 C.F.R. §§ 1910.147(c)(4)(ii) and
1910.147(c)(4)(ii)(B), at a worksite in Idaho. In an attempt to show
dissimilarity, Darling argues that because the citations involved “very
different” machines—a hydrolyzer versus a “pneumatic air-powered”
machine that “pushes cow carcasses”—the hazards at play were clearly
different. We are not convinced.
Admittedly, the Idaho citations involved a different machine that
almost certainly requires its own unique lockout/tagout procedures. That
machine may even pose different hazards—say, a “crush injury” as opposed
to the hydrolyzer’s “burn” risk. But those considerations—which go to the
nature of the machine in question—are not necessarily relevant here.
Although meaningful, it is not even controlling that Darling was cited for the
exact same violation. See Bunge, 638 F.2d at 837–38. Instead, we look to the
hazards associated with Darling’s violations. For example, in Deep South
Crane this Court affirmed a repeat violation for inadequate training even
though the two violations at issue “involved a different type of crane that
caused a different injury.” 535 F. App’x at 390. That is because “both
violations were caused by the same hazard,” namely that the employer
“failed to adequately train a crane operator.”
Id.
The logic in Deep South Crane is instructive here. While the machines
and injuries in question may have varied, the potential hazards that led to
each violation were the same in each of Darling’s cases. By failing to detail
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the lockout/tagout procedure in the Mississippi and Idaho facilities,
Darling’s employees were subjected to the same risk, namely that they would
be inadvertently exposed to uncontrolled energy.4
Darling insists that the “record is replete with evidence of the lack of
similarity between” the two citations and the “lack of specificity cited differ
greatly between the two citations.” Tellingly, however, Darling provides no
record cites for those propositions. See Fed. R. App. P. 28(a)(8)(A). At the
end of the day, the hazards are clearly similar, and Darling fails to disprove
that similarity.5
C.
Finally, we address whether Darling waived an “unforeseeable
employee conduct” argument. We conclude that it did. Employers may
assert an affirmative defense (although not recognized in any statute) that an
OSHA violation was the result of “unpreventable employee misconduct.”
S. Hens, 930 F.3d at 678. Here, the ALJ found that “Darling failed to offer
any evidence in support” of the defense at trial and did not “mention it in its
post-trial brief, let alone point to any evidence in the record” to satisfy its
burden. It is true that Darling did not push the defense at trial—other than a
passing mention in its opening statement—or advance it in its post-trial
memorandum. But, if a “party wishes to preserve an argument for appeal,
the party ‘must press and not merely intimate the argument during the
_____________________
4
Darling’s framing fails on first principles, too. The focus cannot be on the type of
machine at issue. That would be simply too narrow of a reading of the law, and it would
consequently render the “repeat” classification meaningless—a company would face
increased penalties following prior violations only when it (1) violated the same exact law
and (2) that violation was for the same exact machine.
5
Darling has a high bar to overcome, too—“rebuttal may be difficult since the two
violations almost have to be substantially similar in nature in order to constitute violations
of the specific standard.” Bunge, 638 F.2d at 837.
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proceedings before the [trial] court.’” Centerpoint Energy Hous. Elec. LLC v.
Harris Cnty. Toll Rd. Auth., 246 F. App’x 286, 289 (5th Cir. 2007) (quoting
Keelan v. Majesco Software, Inc.,
407 F.3d 332, 340 (5th Cir. 2005)). Beyond
that, Darling barely raises the argument before us—it presents a single page
in its main brief and a few more in its reply brief. Still, it does not point the
panel to any related or dispositive cases. See Fed. R. App. P. 28(a)(8)(A).
Consequently, Darling failed to advance the argument before two different
tribunals and has therefore waived the defense.
…
Considering the record and the deferential standard at play, we
conclude that there is substantial evidence to support the ALJ’s conclusions.
Accordingly, we AFFIRM.
15
