Second Federal Appeals Court Rejects OSHA’s Efforts to Evade OSH Act Statute of Limitations by Alleging Continuing Violation
In 2008, OSHA issued citations to Delek under its PSM standard for the alleged failure to resolve recommendations from process hazard analyses (“PHAs”) and audits that were conducted in 1994, 1998, 1999, 2004, and 2005 — all prior to Delek’s acquisition of the refinery. The PSM standard requires employers to update PHAs every five years, conduct compliance audits every three years, and address PHA and audit findings “promptly” after they have been completed. The OSH Act states that no citations may be issued more than six months following “the occurrence of any violation.”
OSHA argued that the alleged failures to address the PHA and audit findings were “continuing violations” that would not trigger the OSH Act’s statute of limitations until they were abated. The Fifth Circuit disagreed, extending the DC Circuit’s reasoning in Volks Constructors v. Secretary of Labor (the “Volks decision”), in which the court rejected OSHA’s claim that violations of its record-keeping regulations were continuing violations that prohibited the statute of limitations from expiring until they were corrected.
In reaching its decision, the Fifth Circuit panel stated that OSHA’s position, if adopted, would permit OSHA to issue citations in perpetuity after the occurrence of a safety violation—an outcome that would be inconsistent “with the basic purposes of a statutory limitations period” and “utterly repugnant to the genius of our laws.” Rather, the Fifth Circuit held that the failure to address a PHA or audit recommendation is a single violation for the purposes of the statute of limitations and reasoned that a strict interpretation of the OSH Act’s six-month statute of limitations in this context would “provide security and stability,” and prevent OSHA from instituting enforcement actions under the PSM provisions at issue long after the relevant witnesses’ memories had faded and the available evidence had gone stale.
Consistent with the Volks opinion, the Fifth Circuit panel in Delek left open the possibility that a continuing violation that tolls the statute of limitations could exist where an employer fails to correct a persistent hazard to employee health or safety. Nonetheless, the Delek decision is hugely important because it is a clear repudiation of OSHA’s long-standing claim that the Volks decision applied only to record-keeping violations. As such, the Fifth Circuit’s opinion in Delek signals that courts will continue to place the burden on OSHA to justify citations issued outside of the six-month limitations period, and heralds a growing consensus that exclusions from the OSH Act’s statute of limitations should be strictly limited.
Mark Dreux, head of the OSHA practice at Arent Fox LLP, led the team of partner, James H. Hulme, and associate, Alexandra M. Romero, that represented Delek Refining Ltd. in this case. Mr. Dreux argued the appeal in the Fifth Circuit. Any questions regarding this decision should be directed to a member of the team or to the Arent Fox LLP attorney who regularly handles your matters.