                                                       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that this opinion should not be published and is not precedent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
